Knight First Amendment Institute https://knightcolumbia.org/ In house <![CDATA[A Normative Intervention to Reclaim ‘Free Speech’]]> https://knightcolumbia.org/content/a-normative-intervention-to-reclaim-free-speech

In February 2025, JD Vance stood before an eminent crowd of European leaders in Munich and accused them of failing democracy and turning their backs on “Western” values. Claiming the mantle of free speech warrior, he dismissed disinformation as a “Soviet-era” word and presented far-right harassment of migrants as part of a legitimate public debate. “If American democracy can survive ten years of Greta Thunberg’s scolding,” he admonished, “you guys can survive a few months of Elon Musk.” It was an act of hypocrisy, of course, because even if Europe has room for improvement on free speech, the Trump administration itself was just beginning an unprecedented crackdown on domestic and global civil society. The claim to be free speech defenders is a fundamentally hollow one, a distraction, political signaling and ground laying. Designed and honed over many years, Trump, Vance, Musk and their allies in Congress, Silicon Valley, parts of the media, and Europe—especially Alternative for Germany, France’s National Rally, Reform UK, and Hungary’s recently ousted Fidesz—have self-interestedly defined the terms of free speech and used their narrative to try to protect themselves against claims of censorship, even after, for instance, the fiasco of Federal Communications Commission Chair Brendan Carr’s attempt to silence Jimmy Kimmel.

There is more to the populist free speech claim than hypocrisy. We should identify the narrative themes that thread through their rhetoric. In their absolutist world, speakers reign supreme, efforts against hate, disinformation and harassment constitute anti-democratic interference, content moderation is tyranny, and regulation of any sort means censorship. This framing, a key feature in the politics of populist parties globally, exploits weak civic and cultural understanding of the purposes of freedom of expression, seeking to undermine an information environment that should, if well designed and supported, promote knowledge and debate essential to democratic society. The framing is also deeply consequential, a foundational argument behind a range of destructive policies.

It is also wrong. Permit me a moment to advocate the human rights law framing of freedom of expression, the global free speech vernacular, rather than the domestic American one. The language of the First Amendment is, compared to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by the United States and about 170 other states, both categorical (Congress shall make no law) and linguistically narrow (abridging freedom of speech, or of the press).

By contrast, Article 19 provides that freedom of expression protects everyone’s right to “seek, receive and impart information and ideas of all kinds, regardless of frontiers,” through any media of one’s choice. Seek and receive, not just impart. It protects speakers and also audiences and listeners, the professional researcher and the recreational rabbit hole finder; it promotes the public’s rights to information, accountability, independent investigative journalism, education, and civic space for debate and culture. It demands that public authorities only adopt restrictions that meet strict tests of legality, necessity and proportionality, and legitimacy. Its precursor is the Universal Declaration of Human Rights, with its similarly worded Article 19, and its framework may be found in European and inter-American regional treaties and jurisprudence and in domestic constitutional law worldwide. The Article 19 framework is also the legal basis of sound regulation designed to protect and promote vulnerable communities, the right to vote, and democratic institutions. As an engine for innovation in business, science, technology and governance, a multidimensional freedom of expression is what separates the dynamism of democracies from the retrograde reality of repressive regimes.

As an alternative to the First Amendment, this framing of free speech rarely gets aired in political and popular discourse; it certainly isn’t central to any political agenda in the United States. Instead, the public gets a steady dose of one-sided arguments about free-speech-for-speakers from the very same politicians and officials who are clamping down on public debate and pluralistic media and consolidating the power of digital-age companies entwined with the state.

All of this argues for a process of reclamation of “free speech” for the public’s interest, not merely for the interests of companies, governments, or partisans. Every policy supporting an information environment that works for democracy—Big Tech transparency, guardrails on AI, vibrant public and independent media, active and unimpeded civil society organizations, efforts to address disinformation and hate, and so on—depends on the public, lawmakers, and the courts embracing not only the language of Article 19 but its underlying meaning and value. It’s a battle we are losing right now, with grave consequences for the future of democracy.

Reclamation should be a political and civic project. It requires that democratically minded leaders in government, culture, business and civil society make the case for a vision of “free speech” that both opposes censorship of any kind while also advocating other free speech values that benefit the public: pluralist media, public broadcasting, individual access to information (understanding access in all its meanings), tech transparency and competition, AI guardrails, and much else. Obviously, this will have to translate into legislative agendas as well, supported by a strategy of showing why investments in a healthy information ecosystem benefit individuals and their communities. But I believe we won’t make any progress if we fail to persuade the public that democracy depends on a broader way of thinking about free speech than currently on offer today.

]]> /content/a-normative-intervention-to-reclaim-free-speech Mon, 15 Jun 2026 00:00:00 -0700 <![CDATA["Lawyering Without Law" Transcript: Ep. 4]]> https://knightcolumbia.org/content/lawyering-without-law-transcript-ep-4 Alberto Mora:

Our purpose as a government, as a country, is to protect and advance human dignity under all situations. And human dignity is defined by human rights and is defined by the civil rights that are articulated in our Constitution, which led me to the conclusion that in the strategic defense of our country, we do two things - we protect our lives and our territory, but we also protect our freedom and our values.

Katy Glenn Bass:

Hello and welcome to Lawyering Without Law, a podcast by the Knight First Amendment Institute where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country’s slide into authoritarianism. I’m Katy Glenn Bass. I’m the research director at the Knight First Amendment Institute, and you just heard a clip of our next guest, Alberto Mora, who we will introduce in just a minute. Joining me back on the podcast today is my co-host, Professor Madhav Khosla, the B.R. Ambedkar Professor of Indian Constitutional Law and professor of political science at Columbia University. He is also the Knight Institute senior fellow.

Madhav Khosla:

Hi, Katy. Great to be back on the show.

Katy Glenn Bass:

I’m glad you’re here.

Madhav Khosla:

Joining us today is Alberto Mora, who served as the General Counsel of the Navy during the George W. Bush administration.

Katy Glenn Bass:

After learning that detainees at Guantanamo Bay were being interrogated using practices widely considered to meet the legal definition of torture, Mora became one of the most prominent internal critics of the administration’s use of torture during the war on terror, arguing that these practices violated both US law and democratic values. In this conversation, we’ll talk about the fight against the use of torture after September 11th, the role that lawyers played during moments of national crisis, and what those debates can tell us about the present day.

Madhav Khosla:

Alberto, welcome to Lawyering Without Law.

Alberto Mora:

Thank you so much.

Madhav Khosla:

So to start off, can you tell us a little bit about your background, how you became involved in the debate over torture and interrogation policy inside the US government after 9/11?

Alberto Mora:

Well, by way of background, I think the first point to convey is that I’m the son of a Cuban father and Hungarian mother. I was born in Boston, but my father, who was studying postgraduate gastroenterology at Harvard Medical School, took his young family back to Cuba. So my first eight years, for all practical purposes, were in Havana and Pinar del Río, Cuba. The family supported the Castro revolution, thinking it to be a Democratic revolution, but soon thereafter, it was clear that it was not and the family then migrated to the United States. One year in Miami, then grade school and high school in Jackson, Mississippi, then off to college at Swarthmore.

And then into the State Department. That started a career that was both private sector and governmental in the George W. Bush administration. I was nominated and then confirmed to be the General Counsel of the Department of the Navy, so both the Navy and the Marine Corps. I assumed my responsibilities in the summer of 2001 was in the building when the aircraft hit the Pentagon on 9/11. And then my professional life changed, much like a lot of people’s lives changed after that day. I say my professional life changed because the team around the Navy Secretary, Gordon England, was selected really to redesign the business functioning of the department, make it more efficient. But then as soon as the aircraft hit, the country was at war and almost all of that work went out the window and we were focusing on fighting the war against terror.

Madhav Khosla:

And you had initially understood the Guantanamo interrogation program as a legal error that could hopefully and potentially be corrected through internal channels. When did you realize that that framing was inadequate and what did that reveal about how lawyers inside government understand the institutional role?

Alberto Mora:

Well, I actually had no understanding of the interrogation program at first. The interrogation and really detainee management and handling activities were classified as operational activities during the war, meaning that it was handled through military channels, really not through the Department of the Navy channels. The departments, all the military departments are entrusted with training, equipping, and then providing combat-ready forces to the combatant commanders who actually deploy the military. So I, as Navy General Counsel, had no involvement whatsoever, wasn’t even copied on correspondence or memoranda concerning anything dealing with the detainees, including the interrogation activities. I knew that detainees were being sent to Guantanamo. In fact, I was president in Guantanamo when the second flight load of detainees arrived and saw Camp X-Ray and how it was set up, which struck me as inadequate temporary facilities.

But the first time I got involved in interrogation would’ve been in November 2002, so more than a year after the 9/11 events, when an organization within the Department of the Navy, which I supervise, which is the Naval Criminal Investigative Service, they’re responsible for law enforcement, anti-terrorism, counter-espionage, counter-terrorism activities for the Navy, came to me and told me via the director of NCIS that they had been hearing rumors and had information concerning detainee abuse in Guantanamo. He wondered whether I wanted to get further involved in that. I did. NCIS came to me and told me what the basis of their suspicion was that detainees were being abused. They hadn’t seen it. They had not been present in any interrogation session, so they couldn’t verify it. But Guantanamo being a small place and people sharing work notes, the mess halls, the dormitories during recreation, they came to understand that one of the two task forces, the military task force responsible for obtaining intelligence information that could be used in military operations from the detainees, had been authorized and was using force to elicit the information.

NCIS went hunting further. They obtained, without permission, by the way, fragments of interrogation transcripts. And what they put together was a picture that untrained interrogators, mainly young with no language experience, no cultural experience, no interrogation experience, had been authorized to use force and the use of force was gradually increasing. NCIS was concerned that if the Guantanamo interrogation practices proceeded as the historical evidence shows globally, meaning that if force is authorized, then the level of force will continue to increase until they’ve reached the level of torture. They felt that that process was underway. It’s called force creep. And they felt that at Guantanamo, the interrogators may have already reached a level of torture.

When they finished the brief, I said I had heard nothing about this, but it really sounded like unauthorized unlawful activity was going on and I promised to look further. Two days later, I had in my hands the composite memorandum that was capped by a memorandum from the Department of Defense General Counsel Jim Haynes to Secretary of Defense, asking for authority to apply certain counter-resistance interrogation techniques to the detainees that included walling, potentially waterboarding, detainee-specific phobia techniques and other techniques that appeared as either clearly being in the realm of torture, such as waterboarding or potentially being waterboarding, depending on how they were applied to the individuals in question, either singly or in combination.

When I saw what had been requested by way of interrogation techniques, the absence of any competent legal memorandum associated with the legal authority for applying those techniques and the fact that the DoD General Counsel, with a consent of the chairman of the Joint Chiefs of Staff and the deputy Joint Chiefs of Staff, had submitted a request for approval of those techniques to Secretary Rumsfeld, Secretary Rumsfeld had approved them, I felt that this had confirmed what NCIS had feared and at least on paper, given the legal arguments and the interrogation techniques applied, that the interrogators might be certainly using cruel and inhuman and degrading treatment, but potentially had reached the level of torture at the time.

That was my initial set of understandings and my initial involvement with the entire procedure. I felt that this was entirely a mistake, meaning that had the attorney in Guantanamo, this is the Judge Advocate General for the Army that was a chief lawyer in Guantanamo, not written a memorandum that I thought was beyond their capabilities and I deemed as incompetent from a standpoint of accurately describing the legalities of interrogation in Guantanamo. That was approved by Southern Command in Miami, then sent up to the joint staff. The legal advisor to the chairman had not acted on the memorandum until the DoD General Counsel had gotten its hands on it and then he and the secretary approved it. Secretary approved it, I felt, because he had been relying on not only his general counsel, but four or five levels of lawyering before it had gotten to him. I felt the general counsel and certainly Secretary Rumsfeld were overwhelmed and not devoted sufficient time to read the memorandum and imagine what it could lead to. And so they’d missed the issue.

As soon as I got the memorandum, I went to see the DoD General Counsel, said, “Look, I’ve got this memorandum. I think it potentially authorizes torture.” He says, “No, it doesn’t.” And then I spent the next 45 minutes walking him through why I believe that easily the authorized techniques could lead to the torture. He listened to me as long as I cared to speak, but I felt that he immediately understood exactly the point I was making. I felt that because he had made a mistake, because I felt naively that no American lawyer, no senior government official would ever knowingly authorize the use of torture, that he would recognize his mistake and was certain that before I left his door to exit his office, he’d be calling Secretary Rumsfeld asking for the authorization to be withdrawn or suspended for the time being.

And I really didn’t think much about it. I thought the problem had been solved once the mistake had been pointed out. And about 10 days later, two weeks later, I was at my mother’s house near Miami, Florida in the pool when I got a phone call from the NCIS director, David Brant, saying, “Remember the problem we had talked about in Guantanamo, well, the problem is continuing.” And I was standing with a phone dripping wet and realized that while all of this had been a mistake, it was not inadvertent that people, who have been cautioned about the illegality of the activities, proceeded without changing. And I knew I’d had a different kind of problem than one of a simple legal mistake by an overworked attorney.

Katy Glenn Bass:

Thank you for sharing that history. So thinking about the way lawyers were understanding their institutional roles during that period, there were obviously a number of lawyers who were writing justifications for these interrogation practices. There were also lawyers like you and others inside the Department of Defense who believed that the program was unlawful and was inconsistent with American values. So how does this program continue in the face of internal opposition? What allows a large institution to act against what a lot of officials privately believe?

Alberto Mora:

That’s a question I’ve been posing myself for the last 25 years. I have yet to come to a satisfactory explanation how this came about. For those of us at my level, at the departmental level in the Department of Defense, and this is all the departments, Air Force, Army as well, we were not involved in the original lawyering. I wasn’t and I don’t believe the others were either. The Department of Defense General Counsel was involved. He was part of the inner circle of attorneys in the administration. That would include White House Counsel Alberto Gonzales, it would include the attorney general, it would include Vice President Cheney’s legal counsel at the time and a few others. State Department was not involved, for example. They were excluded from this. So there was a group of attorneys, probably less than 10, maybe even half of that, who understood the program. And as history later showed, the program was initiated by the CIA and taken to the White House into the attorney general’s office for recommendations to be enacted and then approved legally.

We had no understanding of that. It’s like the blind man touching the elephant. You see a portion of it, but you don’t see the totality of it. You don’t understand it. That’s what happened to me. I felt this was wholly homegrown in Guantanamo, it was mistakenly approved in DoD. I had no knowledge. In fact, I didn’t even suspect that National Security Council, attorney general, Office of Legal Counsel, White House Counsel had been involved in devising the program. I thought it was entirely a problem of the Department of Defense’s own making. It was only later actually until after Abu Ghraib that I got a fuller understanding of the entire dimensions of the program.

I don’t understand how this happened. I don’t understand how any single attorney, by looking at the paperwork, could not have understood that this was torture and it was illegal under any interpretation. But if I were to interpret what happened, I think the root cause is the fear and fury that the entire nation felt after 9/11, a fear that many more attacks would take place and many more Americans and other nationalities, residents in this country would die and the fury that this had happened and the determination to fight back against those responsible. I’m certain that the fear and fury distorted the mentality, the thought process, the lawyering process, most fundamentally, but certainly the values. And it went up from CIA and then they encountered attorneys both in the White House and the Department of Justice, principally John Yoo, who was a senior national security attorney in the Office of Legal Counsel. Very few other people at that level in the Department of Justice or at the White House had experience in international humanitarian law, laws of war. And so they were acting on the advice of a very few people who were sympathetic to the application of torture to these individuals.

Fundamentally, these attorneys thought that Al-Qaeda, through its barbarism, had opted out of the human race, individuals who, because they demonstrated their willingness and ability to kill and manifested their desire to kill many more, did not qualify for the ordinary legal protections or human rights protection that all individuals are entitled to. This was a mistake, a mistake on many different levels, but the failure to recognize the inherent right to be free from torture by individuals, including people of Al-Qaeda, they created a sham legal analysis that was not meant so much to provide an objective application of the law, but really more to create a get-out-of-jail card and legal immunity screen to protect those who recommended, designed, authorized, and implemented the program from ever being held responsible for having committed war crimes as it turns out. I believe that was the mechanism. They wanted the torture. They felt that the individuals who were targeted for torture had volunteered for that kind of treatment, and then they wanted to ensure that if anybody found out about the program, nobody would be held responsible for it. That was the internal, I think, locus, calculus. And then it filtered up through all these various departments and apparently nobody objected it until they got to me as far as I know. It’s shocking that that should have reached that level of permission at that point.

Katy Glenn Bass:

I agree with that. You spoke at the beginning of the episode about your own family history and your family’s roots in Hungary and in Cuba. Did that family history shape how you reacted to this program. And if so, how?

Alberto Mora:

Yes, absolutely. Both my parents and my mother twice had gone into exile. They had lost their family, their way of life, their language. You might come to the United States and have a very successful life and very comfortable life as my parents did, but nonetheless, you experience a type of suffering that is incurable by later success outside of your own homeland. My father, for example, was always Cuban, academic physician, did well financially, professionally, very credentialed, but he always felt Cuban and always felt that part of him was missing. What that taught me was the importance of politics, the important role of the United States in defending democracy and the rule of law. It taught me how comfort and security may be lost, and it pointed me unknowingly at first, but really in the direction of becoming a lawyer and becoming interested in American foreign policy and the role of the United States in the world. And that role I always felt was to defend democracy, defend human rights, defend the rule of law as the primary functions of American power globally.

Madhav Khosla:

So in 2016, you wrote a piece for Foreign Affairs emphasizing the strategic costs of torture, and that argument is sometimes read more through a pragmatic lens rather than through a moral one. And how do you understand the relationship between the strategic case and the moral case, and what’s your sense about which one perhaps proved more effective within government?

Alberto Mora:

So I’ve spoken to very accomplished academics who also served in government, including at the National Security Council. And they said that they never heard a discussion at the National Security Council as to what the right thing to do is. I mean, rather right thing, the moral thing to do was. There’d never been a discussion about morality at the National Security Council level, which takes us to a point worth noting that when the Bush administration approached the issue of torture, they only asked the question, “Can we do this?” Meaning they asked the legal question. They never asked the question, “Should we do it?” Which is why, as far as I know, and I think as far as the historic record now indicated, the National Security Council was never tasked with producing any memorandum as to the should question, “Should we use torture even if it were to be legally authorized to do so?"

I think had a pair of young staffers been given the weekend to put together a memo, they would’ve come up with 50 reasons why the United States should not engage in torture for foreign policy reasons, in addition to the legal and moral reasons as well. Unfortunately, the National Security Council on three occasions authorized the use of torture. And this is the full National Security Council, which included individuals like Colin Powell, who later told me personally that he regretted those choices that had he known what he was doing, what they were all doing, he never would’ve authorized the implementation of the enhanced interrogation program that the CIA was organizing.

So back to your question, I think as I thought about why the United States authorized torture and how it came about to do so, I felt that we had undervalued the policy reasons why torture should never have been implemented. And what I’m talking about there is that in reality, the United States is a construct of many ideas, but principally of certain values that are baked into the Constitution. We’ve organized our Constitution, we’ve organized our legal system, we’ve organized our system of governance in order to value and implement certain moral judgments, and at the heart of the moral judgments is the importance of human dignity. Our purpose as a government, as a country, is to protect and advance human dignity under all situations, and human dignity is defined by human rights and is defined by the civil rights that are articulated in our Constitution, which led me to the conclusion that in the strategic defense of our country, we do two things - we protect our lives and our territory, but we also protect our freedom and our values.

And the Bush administration did not realize that by essentially taking the right to be free from torture out of the basket of inalienable personal rights, both under international law and under American constitutional rights, we were then diminishing this fear of rights not only globally, but also within our own country. We had transformed the right to be free from cruelty to a matter of policy discretion by government, meaning that no, it’s not a matter of rights, individual rights; it’s a matter for any government anywhere to decide when or how to use torture to advance whatever security objective or other national objective they may have. That severely impinges on human dignity.

What’s worse, as the enhanced interrogation program metastasized, meaning that the black sites were constructed in various different countries, many other countries were recruited to engage in the extradition programs through other countries, for example, Morocco, Egypt, Jordan, other countries and so forth. We were asking them to put aside their adherence to human rights and to their own laws prohibiting cruelty to individuals and adopting a new architecture of human rights, which severely diminished. So I think their policy considerations, and in fact, in one of the conversations I had with the Department of Defense General Counsel, I asked him the question, “Who decided that it was more important or more in the national interest for us to be able to torture half a dozen, two dozen individuals rather than continue to coherently espouse the advance of human rights across the world, which has brought such benefits to the United States and so many other countries for over 50 years?” And so, whether we knew it or not, it was a policy decision we had made that we would value the application of torture over coherent enforcement and expansion of human rights.

So that was one problem, one policy problem with the decision to use torture. But I also felt pretty clear that the rest of our allies in the war on torture, meaning all the European countries, where this kind of behavior was per se criminal activity on those countries, those countries would not support an American policy or revisions to the architecture of human rights, such as the United States was proposing. And their opposition to that would also mean necessarily that our ability to create an alliance, expand an alliance, and fight with an alliance that shared the same values would be compromised. So our efforts to fight terrorism would suffer militarily as a result of our mistake in using torture as a weapon of war.

So there are a number of reasons. And in fact, I think the policy consequences of the use of torture were severe, not only to ourselves, our rule of law, our constitutional values, and our purpose, but also to the global alliances that we had sought to expand and maintain as a key foreign policy focus since the end of World War II. And I had two interests leaving the Pentagon. One is that the Bush administration’s definition of torture, which essentially permitted, as one critic said, everything that Saddam Hussein had been doing in his own country under the OLC definitions of torture, that that definition not be changed, that we revert back to the standard international definition of what constituted extreme force. And the second was that we understand not only the legal consequences, the moral consequences of use of torture, but the policy consequences that would necessarily ensue if that kind of reasoning were to be adopted by the United States and other countries. So those were my principal objectives and concerns following from this experience in the Pentagon.

Katy Glenn Bass:

Thank you. So you challenged the torture program from within the administration, and I believe you stayed for several years. You left at the beginning of 2006, correct?

Alberto Mora:

Yes, that’s right.

Katy Glenn Bass:

So looking back now, do you think that staying inside was the right decision? And do you have any advice for lawyers within this administration who are weighing the trade-offs between dissenting internally and leaving and going public?

Alberto Mora:

I think decision to resign is a difficult decision, a complex decision. It has various different kinds of metrics. Ultimately, it’s a personal decision that falls back on one’s own sense of right and wrong. It will vary with every individual. And by the way, I never asked anybody in the Department of the Navy or in any other administration to do anything on this program because I understood that this could be career-limiting. I felt that as a political appointee, this was my job. This is the reason that you have political appointees to take action on decisions that might be politically convenient or could be career-ending for somebody who’s a career officer.

I sympathize and I understand that if you’re 20 years into a 30-year career as a civilian in the general counsel’s office in the Department of the Navy and you’ve got the proverbial kids in school and the mortgage to pay off, that you losing all of that, losing your retirement after 20 years of investment is a profoundly serious decision with profoundly serious impacts on one’s wife and children. And because I felt I could do this myself, I could raise the issue, confront the decision without necessarily involving others, I did that, but also recognizing an important element in the decision whether or not to stay in an administration or not stay in an administration.

I think, first of all, what happened with me is that most of this activity was done before Abu Ghraib. So we raised the issue, I was successful, and then I don’t mean to give myself the credit, because when I went around and talked to the other services, senior judge advocates, all of them agreed with my analysis. All of them agreed that this was unlawful, that the memoranda were incompetent, and that as a policy decision, as a military decision, the use of torture was profoundly counterproductive on many different levels. So after a relatively brief period of time, I’d say maybe two months or three months after the initial discovery of the torture, it wasn’t me that was working. It was a team, myself and all the other senior TJAGs that were advocating for the same position within the Pentagon. This was an achievement from the standpoint of attempting to counter the policy.

I went repeatedly back and indicated that I would have to write a written memorandum and put it in the file, send it to the DoD General Counsel, staking my position that the authorized techniques were torture. Secretary Rumsfeld rescinded the authorization to use those techniques in Guantanamo. And NCIS confirmed to me that the abusive interrogation at Guantanamo had stopped. This, to me, was a victory. I felt that common sense had finally prevailed. It took a while longer than we would have wished, but nonetheless, the Pentagon had come to see the reality that those interrogation techniques were neither legal nor wise.

Secretary Rumsfeld then ordered that we create what was called a working group to analyze the issue in much greater detail. That working group was then directed that they were to accept the Office of Legal Counsel’s memoranda on harsh interrogation techniques, which I certainly wouldn’t accept and it turned out the other JAGs would not accept as well. I informed the DoD General Counsel that I would not submit to OLC advice if this was going to be the advice that torture was authorized, and we would oppose or not concur with any working group recommendations that would rely on those memoranda.

The working group was disbanded, we thought, and no memorandum authorizing those techniques was ever authorized. So we had thought that we had won the debate concerning techniques, and I, and I don’t think anybody else among the senior JAGs, ever received any other indication that abuse was going on elsewhere outside of Guantanamo until Abu Ghraib. When Abu Ghraib exploded in the summer of 2004, I was astonished because I was wondering, how could this have happened? We had this discussion in the Pentagon, we had a decision, and so forth. And then of course then the disclosures about CIA involvement, Justice Department involvement, National Security Council involvement, the presidents and the vice president’s own involvement came out, and it became clear that what I had thought the problem was was a complete misreading. I was looking at only at a narrow corner of the issue, not at the entire picture.

President Bush threatened to veto Senator McCain’s Detainee Treatment Act legislation that would have prohibited the use of abuse by any government official directly or indirectly anywhere in the world. Had that happened successfully, I would have been obliged to resign from the administration, but because the veto did not prevail, the act came into place, there was significant progress at the senior levels in the military to oppose the use of torture and return to Geneva, I felt that my continuing the administration was warranted, but there could have come a time where had the administration prevailed on the torture issue, I would have had to resign out of principle.

Madhav Khosla:

Alberto, the lawyers most responsible for authorizing the torture program face little professional accountability. And how do you think that represented something to the next generation of government lawyers? What message did it send to them?

Alberto Mora:

I think that’s a matter that has been profoundly troubling throughout. I don’t understand how anybody responsible for authorizing and implementing torture could be any attorney involved in the process, could not but be sanctioned and possibly disbarred by their home bar association for having done so.

I think what’s happened is the torture program was a failure, a failure in the sense that it was counterproductive. It didn’t produce the intelligence that they hoped and was confident it would produce. The Senate torture report, by the way, I think conclusively demonstrates that as a policy matter, meaning torture did not work as it was advertised by the CIA supporters of the program to have worked in addition to being illegal, bad policy.

But the immunity program that was put in place, the immunity mechanism that the Department of Justice put in place has been strikingly successful. In addition to the fact that the politics of this were such that there probably would not have been a member of Congress that would’ve supported indicting those responsible for the torture program at any time between 2001 to the present time, and that would’ve been compounded by the fact that to have really held everybody who was responsible accountable, it would’ve meant holding the president, vice president, attorney general, national security advisor and a whole raft of lawyers as responsible and that simply would not have happened as a matter of politics in this country.

By the way, when I was in the Pentagon, I understood that there were two issues here. One was the legal standard and then the accountability issue. Those were the two primary legal issues when you talk about something like torture. There’s no law that actually would be worthy of the designation of law unless there’s accountability for its violation. But as I say that, I recognize, and I recognized this in the Pentagon, that for me to have raised the accountability issue at the very start would’ve changed the dynamic of the discussion completely because everybody associated with the program would’ve felt personally threatened and they would’ve been, and the discussion would not have changed as to what does a law provide about torture, but am I going to be liable or are my colleagues going to be liable and what are the political dimensions of this?

So I never raised accountability at first. My interest was ensuring that the international standard and the international definition of torture was upheld. But later, once that standard was more or less upheld, then the accountability issue reared up. And my hope is that as a result of our torture experience, the American public, the American national security leadership understand that were we to go back to a torture regime, there will be accountability next time around. That’s not a given; that’s a hope more than a legal certainty at this point.

But my belief is that the authorization of torture and the inability of our courts and political system, including congressional oversight, to hold those accountable for doing this has facilitated the slide down into the current situation where you see much greater illegalities being conducted in the administration. You see widespread cruelty as a feature of administration policy across a wide variety of fronts with very little appreciation to the fact that any application of cruelty to individuals under whatever guise, whether it be for military intelligence purposes or immigration law enforcement, is contrary to our values. And we seek, at all times, to build a world that is more protective of human dignity than one that is less protective of human dignity. And I think what we’ve seen in the trajectory between the Bush administration and the Trump administration is a slide down towards greater use of cruelty as governmental policy and less accountability for the same reasons that we didn’t hold people accountable in the Bush administration for having violated the law.

Katy Glenn Bass:

Yeah, I think that’s an important observation. So we have one last question for you in our few minutes remaining, which is turning to the work that you did after you left the Pentagon working on international rule of law programs through the American Bar Association. And I’m just wondering, from that vantage point, how do you see the pressures, how do you understand the pressures that are now being applied to lawyers and judges and institutions, like universities and law firms in the United States?

Alberto Mora:

Well, I had thought that my experience in the Bush administration was difficult, but it’s really has no degree of difficulty compared to what lawyers are experiencing now in the Trump administration. I and my colleagues in the JAG Corps would not have lasted half an hour in the Trump administration. Whatever one may say about the Bush administration, one can’t say that they attack lawyers personally the way that the Trump administration is attacking them now. Lawyers who believe, as I do, that the federal government is only authorized to do those things that it’s expressly allowed to do under federal law have not survived in the Trump administration. So you have a situation now is that to the extent that there are still individuals ... And of course, as you know, thousands have resigned from Department of Justice, but all the various different departments. Those individuals are probably not raising legal objections, not really working as lawyers as the way they should be.

So we have an immense threat to the rule of law in this country, an immense threat that comes from various different directions, including the Supreme Court decision Trump v. US that found that fundamentally a president is immune from being held responsible for illegalities while acting [inaudible 00:33:17] presidency. So under that analysis, where Trump to order the use of torture like George W. Bush did, then he most likely would not be held, could not be held liable, could not even be investigated for having committed torture. So my belief, stated starkly, is that the United States is a country that has a strong rule of law tradition, but it is not a country strictly speaking that is a rule-of-law country, simply because presidential immunity and its cascading effects throughout the administration then removes the president, the administration from the full ambit of accountability.

The American Bar Association gave me an extraordinary opportunity. When they selected me to be the director for global programs, it involved the directorship of the Rule of Law Initiative and then oversight of the human rights activities of the Bar Association. The Rule of Law Initiative had started towards the end of the Cold War, 1989, 1990 as the Berlin Wall was falling down, when individual American attorneys started going over to Eastern Europe primarily and volunteering their services to countries, rebuilding human rights, criminal laws, the judiciary prosecution functions, establishing defense bars, really reforming the entire legal systems of the country. The programs were extraordinarily successful in many countries. You go to a place like Georgia, for example, the country of Georgia, and they’ll tell you the American Bar Association was responsible for the Georgian Bar Association and regaining life and autonomy in that country. But the same can be true of many countries in the region and around the world.

I should mention that in my sense, before the growth of authoritarianism in this country and in other countries, like Hungary and other places, I saw as the greatest threat to the rule of law, the growth of corruption in all its senses, lots of countries in which the rule of law is significantly eroded through or extinguished through the use of corruption. I worked extensively in Guatemala, for example, where that was a country where the legislature, the law schools, the bar association, the courts, and even civil society were all under pressure from malign elements that essentially did not want the rule of law to function in their countries. And so what I was focusing on for my time there was how can the American Bar Association and the United States government and other governments, particularly in Europe, work together to help rescue countries that have been captured by malign elements? What’s the process? How do you chunk that mission? Where do you start? What are the forces that need to be applied, the theory?

And that continues to be a challenge. Even if authoritarianism weren’t an overriding challenge, the threat of corruption to legal systems and the rule of law are an immense problem that have been underanalyzed and not given sufficient importance in public policy, foreign policy.

Katy Glenn Bass:

That’s absolutely right. And unfortunately, I think that is increasingly going to be the case here, trying to disentangle the corruption from the breakdown of the rule of law.

Alberto, this has been a really fascinating and thoughtful discussion. Thank you so much for taking the time to come and speak with us. And also, I just want to add a personal note because I was in law school right around the time you had left the Pentagon. I started in 2006, and the fight over the torture program was really formative in both my undergrad and my law school years. It was why I went to law school. And I just want you to know that people like you who did stand up and who said, “This is wrong. This is both immoral, but it’s also unlawful,” you really meant an enormous amount to young law students like me and to the people that I went to school with. So thank you for the work that you did. It’s been a little awestruck talking to you just now. It’s been wonderful. Thank you.

Alberto Mora:

Katy, thank you so much for those kind words. I’m delighted to hear them.

Madhav Khosla:

Thanks so much for being with us, Alberto.

Katy Glenn Bass:

And that’s it for this episode of Lawyering Without Law. Join us next time for a conversation on the history of 20th century authoritarianism with David Deisenhouse and Jan-Werner Müller.

Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote, fact-checking by Harriet Engelke and Arman Amin. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show is designed by Jay Volmar. Thanks to Alberto Mora who joined us for this episode.

Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org, that’s knight with a K, and follow us on social media. Bye for now.

]]> /content/lawyering-without-law-transcript-ep-4 Fri, 12 Jun 2026 00:00:00 -0700 <![CDATA[Legislative Protection for Public Forums]]> https://knightcolumbia.org/content/legislative-protection-for-public-forums One part of President Trump’s ongoing assault on the freedoms of speech and the press has involved the distortion of what First Amendment doctrine calls “public forums”—spaces the government has deliberately opened to the public or press for expression. During his first term, Trump restricted disfavored journalists from accessing White House grounds, barred disfavored news outlets from press “gaggles,” and revised credentialing rules to make reporters who needed access to the White House more reliant on executive grace. He also made a practice of blocking critics from his Twitter account—an account whose comment threads had become an important forum for debate about his policies.

In the first 16 months of his second term, Trump has leaned into this strategy even further, including by expelling the Associated Press from the White House press pool because it refused to call the Gulf of Mexico the “Gulf of America,” and by conditioning journalists’ access to the Pentagon on their signing a pledge that no self-respecting journalist would sign.

The First Amendment’s forum doctrine has served as a check on some of this. The courts restored the access of the journalists whom Trump expelled from White House grounds during his first term. The Knight Institute sued Trump over his practice of blocking critics from his Twitter account and won victories in the district court and court of appeals; the Supreme Court granted Trump’s cert petition but deemed it moot when former President Biden was inaugurated in January 2021. More recently, a district court sided with the AP in its challenge to its expulsion from the White House press pool, and another district court sided with The New York Times in its challenge to the policy restricting press access to the Pentagon. These rulings have helped protect the integrity of some of the forums in which speech important to our democracy takes place. They’ve limited the government’s ability to marginalize dissent and criticism, and they’ve impeded the government from transforming open forums into tools of propaganda.

But these lawsuits have also exposed the limitations of First Amendment litigation. There is sometimes uncertainty and disagreement about which spaces should be considered forums under the First Amendment. Enforcing the public forum doctrine in courts can take years, and the courts aren’t always willing or able to restore the status quo ante while litigation proceeds. For example, the Associated Press won a decisive victory in the district court but its access to the White House press pool hasn’t been fully restored, and meanwhile the Trump administration has appealed to the U.S. Court of Appeals for the District of Columbia Circuit. Also, government officials can subvert litigation victories by reshaping their policies without reforming them, which is essentially what the Pentagon did after The New York Times’ successful suit. (The Times recently filed a second complaint.) And while First Amendment doctrine imposes constraints on the government once a forum has been opened to the public, courts have been reluctant to impose on the government any obligation to make forums available in the first place (beyond the narrow category of “traditional” public forums), or to keep them open once they’ve been made available. As a result, news organizations and others have sometimes hesitated to sue over unconstitutional viewpoint discrimination out of fear that a victory might result in the government shutting down the forum altogether, which does sometimes happen.

Congress should step in to protect some of the public forums that are especially important to our democracy. It can do this by requiring the executive branch to maintain these forums and to respect a rule of viewpoint neutrality in regulating access to them. Congress should require the White House and every federal agency to dedicate government facilities to press pools whose membership is determined according to viewpoint-neutral criteria. It should require each agency to have senior officials take questions from the press pool on a regular basis. It should give members of the press pool the right to sue if they are excluded from a press pool on an impermissible basis, and it should provide for expedited judicial consideration of these suits. Congress could extend analogous statutory protection to public forums created by government officials’ and agencies’ social media accounts.

Congress has the authority to impose these mandates. Through the Freedom of Information Act and the Administrative Procedure Act—to take two of the most obvious examples—Congress has already mandated that the executive branch comply with rules meant to promote government transparency and accountability and an informed, democratically empowered public. The constitutionality of these statutes is well-settled. The mandates we have in mind would serve the same purposes and be predicated on the same congressional powers. Congress’s enumerated powers relating to the military would provide an additional basis for imposing these kinds of mandates on the Pentagon and the intelligence agencies. Article IV’s Property Clause would provide an additional basis for regulating social media accounts used by executive officials as extensions of their offices.

We think a requirement that agency officials take questions from statutorily mandated press pools would be on solid constitutional footing, too. Many provisions of federal law require executive officials to document their activities, prepare reports for Congress, and make various kinds of records available to the public. FOIA requires the government to disclose records in response to requests from the public—and that statute’s constitutionality is no longer seriously contested even by those who take the broadest view of executive power. Notably, FOIA requires the executive to share even records it would prefer not to share, whereas our proposed mandates would leave it to the executive to decide what to say in statutorily mandated forums. In that sense, at least, our proposed mandates are less intrusive than FOIA is.

Congress has the authority to impose these kinds of mandates on White House officials as well. It has already imposed record-keeping requirements on the president—that’s what the Presidential Records Act is all about—and those requirements are constitutional, as Judge Bates explained just a few weeks ago, writing “While the presidency is a singularly important institution, that gravity does not free it from modest constraint. Quite the opposite.” In reaffirming the constitutionality of the Presidential Records Act, Judge Bates observed that presidents had complied with the Act “without complaint” for 50 years. The White House press pool has an even longer history, and for more than 40 years its membership has been determined by the press itself, through the White House Correspondents’ Association. Article II should not be construed to bar Congress from requiring the president to respect and sustain an institution that plainly serves democratic interests and that presidents have respected and sustained “without complaint” for decades.

First Amendment doctrine isn’t enough, on its own, to prevent an administration that is committed to distorting expressive spaces that are important to our democracy from realizing its ambitions. We need legislation, too, including the kinds of mandates we describe here.

]]> /content/legislative-protection-for-public-forums Fri, 12 Jun 2026 00:00:00 -0700 <![CDATA[Knight Institute Urges Eleventh Circuit to Reverse District Court Order Barring Release of Special Counsel Jack Smith’s Report]]> https://knightcolumbia.org/content/knight-institute-urges-eleventh-circuit-to-reverse-district-court-order-barring-release-of-special-counsel-jack-smiths-report FORT PIERCE, Fla.—The Knight First Amendment Institute at Columbia University filed a supplemental opening brief today urging the Eleventh Circuit to reverse Judge Aileen Cannon’s order permanently enjoining the Department of Justice from releasing Special Counsel Jack Smith’s report on President Trump’s alleged mishandling of classified documents after leaving the White House in January 2021. The brief argues that the district court lacked jurisdiction to enter the permanent injunction while the Institute’s first appeal was pending, and that Judge Cannon’s justifications for permanently suppressing the report lack merit.

The following can be attributed to Scott Wilkens, senior counsel at the Knight First Amendment Institute at Columbia University:

“Judge Cannon’s justifications for permanently suppressing the Special Counsel’s report don’t withstand scrutiny. The report is a government record of profound public importance that must be released. The public has the right to see this report under the First Amendment, common law, and Freedom of Information Act. It’s that simple.”

Read today’s brief here.

Read more about the case here.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org

]]> /content/knight-institute-urges-eleventh-circuit-to-reverse-district-court-order-barring-release-of-special-counsel-jack-smiths-report Thu, 11 Jun 2026 00:00:00 -0700 <![CDATA[Of Slop and Swarms: The First Amendment's Next Test]]> https://knightcolumbia.org/content/of-slop-and-swarms-the-first-amendments-next-test An abandoned railway track surrounded by lush greenery ends in a dark, cavernous tunnel. This AI-generated image, titled “A Recent Entrance to Paradise,” gained fame in 2018 when Steven Thaler attempted to register it with the U.S. Copyright Office. Thaler listed his AI system, the Creativity Machine, as the work’s sole “autonomous” author. The Copyright Office rejected his application, and Thaler appealed in federal court and lost. The U.S. Court of Appeals for the District of Columbia Circuit held that authorship under the Copyright Act belongs exclusively to human beings, and that no machine, however sophisticated, qualifies as an “author” in any constitutional or statutory sense.

Now imagine Thaler turns his Creativity Machine to a different goal: electioneering. He abstractly instructs the Machine to autonomously generate, post, and A/B-test thousands of political attack messages across social platforms, optimizing for viral engagement. Thaler only sets a high-level goal to “take down all politicians who want to regulate AI” and the agentic system does the rest: including deciding who to target, what words, images, and videos to post, and which publications to select. A state legislature, alarmed at the scale of what’s coming, bans autonomous AI electioneering. Thaler sues again, this time claiming his Creativity Machine’s outputs are protected speech.

The two cases involve different legal doctrines. But they share a threshold question: When should the law protect machine-generated outputs that lack any meaningful human expressive contribution? Copyright law has spent nearly a decade working out an answer. First Amendment law has not. Could the Copyright Office’s approach to machine authorship offer a model for First Amendment doctrine, one that reins in agentic AI outputs and slop farms without chilling legitimate AI-assisted expression for humans?

Historically, the legal category of speech has never been stable. As Jennifer Petersen has documented, it has been actively remade with every new communication technology, from silent film to radio to computer code. Across those shifts, speech remained nominally tethered to human agency, but in an increasingly attenuated sense. Petersen calls this a move toward a “posthuman conception of speech,” where messages rather than persons become the locus of legal protection. That approach has already expanded corporate speech rights in ways many find troubling. Generative AI pushes the logic even further and leaves First Amendment doctrine without a clear account of who, if anyone, is speaking.

The First Amendment has generally dealt with human beings generating acts of protected expression. Landmark cases from the Vietnam-era jacket in Cohen v. California to the civil rights defamation case in New York Times Co. v. Sullivan to the Klan’s cross-burning in Brandenburg v. Ohio, all centered on concerns about human choices to say specific things. Even the corporate speech and right-to-listen cases, from Boston v. Bellotti to Citizens United v. the FEC and Martin v. City of Struthers through Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council to Sorrell v. IMS Health Inc., involved corporations as vehicles for human expressive decisions, with human audiences who were interested in listening to human speakers.

That premise is now under pressure. Generative AI produces content at scale that is increasingly disarticulated from human involvement. Agentic systems coordinate tasks across platforms with minimal oversight. AI slop, or mass-produced synthetic content, is now the majority of new material posted to the open web. If legislatures try to regulate this in the typical domains of electioneering, consumer protection, and defamation, they will likely face a wave of First Amendment challenges from AI developers and operators claiming their machines’ outputs are protected speech. Call it slopigation: endlessly scaling litigation over AI content that no human directly expressed.

Without a threshold test asking whether any inherently human expressive contribution is present, courts have no principled way to sort protected speech from autonomous machine outputs. Courts would be mired in epistemologically complex and administratively unmanageable questions about whether agentic AI systems can be said to have viewpoints, and if so, whose they are. Worse, it could threaten to eliminate many forms of AI regulation.

So what could be learned from the copyright approach? When confronted with a flood of AI-generated material, the Copyright Office developed a two-part threshold test. The first factor evaluates the amount and type of human creative contribution. Here, the Copyright Office drew from a famous case of an 1882 photo shoot of Oscar Wilde, where Napoleon Sarony posed Wilde on a couch, dressed in dark velvet and silk stockings. A lithographic company later printed the image on trade cards without permission, claiming there was no copyright protection because the “author” of the image was a machine—the camera—not the human taking the photograph. The Supreme Court disagreed. Sarony had posed his subject “so as to present graceful outlines” and selected “costume, draperies, and other accessories.” A human who shapes a work as “the production of his own genius or intellect” is an author, while one who merely describes to a system what the work should do or look like is not.

The second factor focuses on output predictability. The Copyright Office distinguishes tools that extend a human’s creative choices from systems that generate outputs the human could not have predicted from her input. A Photoshop paintbrush extends a human’s choice predictably. Generative AI produces outputs the human couldn’t have anticipated from her prompt. Predictability matters because it tracks the locus of expressive contribution: The more the output predictably flows from human choices, the more the human is the author. If the output is the system’s own unpredictable recombination, there’s no human authorship.

How would these factors translate to a First Amendment context? Consider these four scenarios:

  • A journalist drafts an op-ed and then uses AI to tighten prose, suggest headlines, and check grammar. She makes express creative contributions and uses the tool predictably. This passes the speaker threshold.
  • An artist iterates across hundreds of prompts with unpredictable generative outputs, chooses between them and arranges them into a final composition. Express contribution flows through selection and arrangement rather than initial generation. In this case, only the selection and arrangement pass the speaker threshold.
  • A campaign operative deploys a swarm of autonomous agents to generate, post, and optimize thousands of message variants but makes no express contribution to any specific output, and the outputs are unpredictable from her high-level objective. This fails the speaker threshold.
  • A “pink-slime” operation publishes hundreds of AI-generated articles per day with nominal human review. Given the lack of express human contribution, there would be a strong presumption against passing the “speaker” threshold unless the operation can show its reviewers made meaningful editorial choices, such as through editorial selections, arrangements, or other substantive interventions.

This proposed framework doesn’t pretend to resolve the metaphysical question of whether AI outputs “really are” speech. It’s a more modest and tractable inquiry: Where is the human expressive contribution in the machine output, and how predictable was the output given that contribution?

One concern with this approach is that it might chill forms of AI-assisted human expression, particularly for those who lack the resources to litigate. In that case, the framework could include a presumption in favor of speaking. Some cases would be easy to satisfy, such as the journalist using AI to tighten prose. For more borderline cases, there could be a safe harbor. For example, once a speaker shows meaningful human contribution through chatlogs, prompt iterations, draft revisions, or other ordinary byproducts of creative work, a presumption of speaking attaches. Then the burden shifts to the opposing party to show that the human role was too attenuated or pretextual.

The presumption runs the other way for outputs produced at a pace or scale no human could meaningfully oversee, or when it flows entirely from automated, high-level commands. A platform that has trained an automated moderation system on detailed editorial criteria, audits its outputs, and can demonstrate that the system implements predictable expressive choices may rebut the presumption against speaking. This tracks Justice Barrett’s hypothetical in Moody v. NetChoice: AI processes that “implement human beings’ inherently expressive choice” remain protected, while AI processes given vague directives and allowed to run on their own do not.

There are three significant complications with the framework I’m suggesting. First, if corporations can invoke the First Amendment, why can’t AI systems? Citizens United and its predecessors might seem to be the logical go-to here. But the corporate speech cases arguably rested on the implicit premise that corporations aggregate and channel the expressive interests of identifiable human principals: shareholders, directors, officers. One interpretation is that the First Amendment protects the human expressive contribution that flows through the corporation, not the corporate form itself. The corporate form is a vehicle for human decisions and expression, while a swarm of autonomous AI agents is not.

Courts have also consistently declined to extend constitutional protection to non-people, including animals, in part because “unlike the human species, which has the capacity to accept social responsibilities and legal duties, nonhuman[s] cannot—neither individually nor collectively—be held legally accountable or required to fulfill obligations imposed by law.” This applies equally to machines, which cannot be held legally accountable in and of themselves: only the humans or corporations that own or administer them can. It’s consistent with copyright’s longstanding refusal to extend protection to non-human entities, including spirits, monkeys, and well-designed gardens.

This brings us back to Barrett’s concurrence in Moody v. NetChoice, where she questioned whether AI-based content moderation decisions would be First Amendment-protected. AI-based decisions could qualify, she suggested, if they “simply implement human beings’ inherently expressive choice ‘to exclude a message [they] did not like from’ their speech compilation,” for instance “to remove posts promoting a particular political candidate or advocating some position on a public-health issue.” But she contrasted this with a scenario in which “a platform’s owners hand the reins to an AI tool and ask it simply to remove ‘hateful content,’” and then she asks: “If the AI relies on large language models to determine what is ‘hateful’ and should be removed, has a human being with First Amendment rights made an inherently expressive ‘choice’?” Such autonomous AI-driven actions may be too removed from “human beings’ constitutionally protected right” to merit protection. This parallels the same concept of attenuation that the Copyright Office uses in its test for authorship.

At least one district court has applied Barrett’s approach in rejecting an AI company’s early-stage argument in favor of First Amendment rights for its fully automated chatbot. This also echoes the Copyright Office’s framework and copyright law’s broader “volitional conduct” doctrine, which acts as a threshold test for liability and denies it where infringing copies are made purely through automated machine activities.

Second, even without a human speaker, don’t listeners have a right to receive AI-generated content? As this argument goes, even if AI outputs lack a human speaker, human listeners may wish to receive them, and the First Amendment often protects the right to receive information. Cases such as Lamont v. Postmaster General, Virginia Pharmacy, Stanley v. Georgia, and Red Lion Broadcasting Co. v. FCC have often been read to protect access to expression regardless of the speaker’s interest. But the right-to-listen cases involved human speakers whose communications were being kept from human audiences. Where there’s no human speaker, it becomes more complex. You may enjoy the sound of ear-splitting construction noise or whale songs but that doesn’t necessarily implicate your constitutional rights. At least one court has specifically held that the right-to-listen does not apply to non-human speakers in the case of captive rhesus macaques monkeys, even if they are “willing speakers under the First Amendment” who regularly communicate “through vocalizations, facial expressions, head and limb movements” and other behaviors. AI outputs derived from training data are not, in the relevant sense, what other people are saying. They are statistical recombinations of past human expression to which listeners generally have direct access through other means.

Murthy v. Missouri closed off the broadest version of this argument. The Court confirmed that generalized listener rights claims unanchored to specific speakers and specific suppressed content don’t establish a concrete First Amendment injury. So a general right to listen to AI is unlikely to succeed. Specific humans would have to show their interest in specific AI content just to qualify for court standing to challenge AI regulations. The copyright parallel is instructive here too. The Constitution grounds copyright in promoting the “progress of science and useful arts,” a purpose that might seem to justify protecting machine authorship on listener-benefit grounds. Courts and the Copyright Office have rejected that move. If limiting authorship to humans is constitutionally sufficient to promote the progress of science, it is hard to see why limiting First Amendment protection to human speakers isn’t also constitutionally sufficient.

A third issue concerns data. For years, Sorrell has troubled regulators, information law scholars, and privacy advocates because its language appears to extend First Amendment protection broadly to information flows that eventually lead to recognized speech. Read maximally, Sorrell would protect almost any data eventually used to generate any protected output. In the context of agentic AI, this could mean almost any output or activity.

But Sorrell, like the corporate speech and listener rights cases, involved human-generated information: pharmacists’ records of doctors’ decisions, recorded and aggregated for human audiences. Extending that logic to machine-generated outputs would leave almost no room for any regulation of online content at all. A better reading, consistent with Barrett’s Moody concurrence, is that First Amendment protection tracks the presence of human expressive choices. It attaches where machine outputs predictably implement those choices and weakens as that connection attenuates.

Agentic AI risks redrawing the boundaries of speech in ways that favor machines over the individuals who might use them. A threshold anchoring First Amendment protection to human expressive contribution offers one doctrinal mechanism for resisting that tendency. It does not resolve what scrutiny applies once a human speaker is established, how courts should handle hybrid cases in which human and machine contributions are deeply entangled, or whether the line between human cognition and AI assistance will even be locatable in the next decade. Those are questions for another day.

But the courts need a threshold, and soon. The next wave of First Amendment litigation will not look like the last one. It will involve content that no human authored, accounts running on autopilot, and speakers who never spoke. Right now, there is no established approach to handle these cases. The Copyright Office had to develop a threshold test to deal with the influx of AI-generated content, and First Amendment doctrine can do the same. The Amendment protects human speech and association. It was not designed to shelter slop factories or swarms of autonomous agents from democratic regulation.

]]> /content/of-slop-and-swarms-the-first-amendments-next-test Thu, 11 Jun 2026 00:00:00 -0700 <![CDATA[Knight Institute Endorses Bipartisan Bill to Protect Against Government Jawboning]]> https://knightcolumbia.org/content/knight-institute-endorses-bipartisan-bill-to-protect-against-government-jawboning The Knight Institute today endorsed the Justice Against Weaponized Bureaucratic Overreach to Networked Expression Act, or JAWBONE Act, a bipartisan bill introduced by Senators Ted Cruz (R-TX) and Ron Wyden (D-OR). The bill is also endorsed by the ACLU and the Foundation for Individual Rights and Expression.

The bill would create new safeguards against government coercion of private speech intermediaries, including social media platforms, broadcasters, and providers of AI systems. It would establish a federal cause of action against federal agencies and officials who unlawfully coerce or attempt to coerce these intermediaries into suppressing or otherwise taking action with respect to protected speech. It would also establish new transparency measures, including standards for logging covered communications between federal officials and private intermediaries and a public portal for certain covered communications.

“Government officials are free to speak, persuade, inform the public, and enforce the law. What they cannot do is use threats or regulatory power to coerce private intermediaries into suppressing protected speech,” said Nadine Farid Johnson, policy director at the Knight First Amendment Institute. “The JAWBONE Act would create an important mechanism for accountability when government jawboning crosses the constitutional line, and we appreciate the leadership of Senators Cruz and Wyden in introducing this bill.”

The Knight Institute has long warned that government jawboning can distort public discourse and evade meaningful judicial review. In 2024, the Institute launched “Jawboning and the First Amendment,” a research initiative examining how informal government pressure can function as a form of censorship, why it matters, and what legal and policy responses can address its harms. When officials pressure social media platforms, broadcasters, or other intermediaries to suppress protected speech, the burden often falls on the speakers and listeners who are excluded from public discourse or whose access to information is restricted.

At the same time, the Institute has emphasized that not every communication between the government and private intermediaries is coercive. Government officials must remain free to share information, advocate their views, respond to emergencies, and enforce existing law consistent with the First Amendment. The JAWBONE Act recognizes this distinction by targeting coercive efforts to induce content actions while preserving space for lawful government communication.

By creating a private right of action, the bill would be an important step toward ensuring that coercion of private speech intermediaries does not evade public or judicial scrutiny.

Read the overview of the JAWBONE Act here.

]]> /content/knight-institute-endorses-bipartisan-bill-to-protect-against-government-jawboning Thu, 11 Jun 2026 00:00:00 -0700 <![CDATA[United States v. Inofuentes]]> https://knightcolumbia.org/cases/united-states-v-inofuentes On June 9, 2026, the Knight Institute and the Reporters Committee for Freedom of the Press submitted an amicus brief in United States v. Michael Inofuentes, a criminal case in which the prosecution relied on evidence obtained from warrantless cellphone searches at the border. The defendant, Michael Inofuentes, moved to suppress the evidence on the grounds that the government’s manual searches of his cellphones were unconstitutional.

In support of Inofuentes’s appeal, the amicus brief addresses the burdens that electronic device searches at the border place on the First Amendment rights to freedom of speech, association, and the press, as well as the Fourth Amendment right to privacy of all travelers. The brief explains that these searches expose vast amounts of expressive, associational, and highly sensitive personal information, including journalists’ newsgathering materials, the identities of confidential sources, travelers’ private messages, social media accounts, political views, and religious associations.

The brief cites documents obtained by the Knight Institute through FOIA litigation in Knight First Amendment Institute v. Department of Homeland Security, and urges the court to hold that the First and Fourth Amendments require the government to have at least probable cause of a border-related offense before conducting a manual or forensic search of an electronic device at the border.

Status: Briefing ongoing; amicus brief filed June 9, 2026.

Case information: United States v. Michael Inofuentes, No. 26-4150 (4th Cir.).

]]> /cases/united-states-v-inofuentes Tue, 09 Jun 2026 00:00:00 -0700 <![CDATA[Umemoto v. Westchester County Police Department]]> https://knightcolumbia.org/cases/umemoto-v-westchester-county-police-department On June 9, 2026, the Knight Institute, the New York Civil Liberties Union, the Policing Project at NYU School of Law, and Freshfields US LLP filed a class-action lawsuit challenging the legality of a mass vehicle surveillance system operated by the Westchester County Police Department (WCPD). Brought on behalf of New Yorkers whose driver and vehicle data have been captured by the system, the suit alleges that WCPD engages in sweeping, warrantless surveillance that violates the New York State Constitution’s protections against unreasonable searches and seizures and exceeds WCPD’s authority under New York law.

WCPD operates one of the largest and most technologically advanced vehicle surveillance systems in the country. The system deploys at least 575 cameras that indiscriminately record vehicles on Westchester County roads and analyzes those recordings using sophisticated AI tools. WCPD collects and retains hundreds of millions of vehicle records in a searchable database for at least two years, allowing police to compile detailed records of drivers’ movements, routines, and associations over time. WCPD also provides more than 50 outside agencies with access to the data, including U.S. Immigration and Customs Enforcement.

The lawsuit alleges that WCPD operates the system without authorization from any elected body and without meaningful safeguards governing the collection, retention, use, or sharing of sensitive vehicle surveillance data. The plaintiffs seek declaratory and injunctive relief barring WCPD from operating the system.

Status: Complaint filed in New York Supreme Court on June 9, 2026.

Case Information: Umemoto v. Westchester Cnty. Police Dep't, No. 65935/2026 (N.Y. Sup. Ct.).

]]> /cases/umemoto-v-westchester-county-police-department Tue, 09 Jun 2026 00:00:00 -0700 <![CDATA[Westchester Drivers Challenge County Police Department’s Warrantless Mass Vehicle Surveillance System]]> https://knightcolumbia.org/content/westchester-drivers-challenge-county-police-departments-warrantless-mass-vehicle-surveillance-system WHITE PLAINS, N.Y.—Today, New York drivers are challenging the legality of a mass vehicle surveillance system operated by the Westchester County Police Department (WCPD) that indiscriminately tracks their personal vehicle data and driving patterns. The class-action lawsuit, filed by the Policing Project at New York University School of Law, the Knight First Amendment Institute at Columbia University, the New York Civil Liberties Union, and Freshfields LLP, concerns one of the largest and most technologically advanced vehicle surveillance systems in the country, with WCPD capturing and analyzing hundreds of millions of vehicle records and sharing them with outside agencies such as U.S. Immigration and Customs Enforcement (ICE).

“I’m a teacher and a mother. I drive to work, I drive my kids where they need to go, and I try to show up for people in my community,” said Sarah Moore, a plaintiff in the case. “It’s scary to think that my car can be tracked just because I’m going about my life, and that this information can be shared with ICE. I shouldn't be watched by the police every time I get behind the wheel. No one should.”

The suit argues that by collecting and storing extensive personal information about millions of drivers, the program violates the New York State Constitution’s protections against unreasonable searches and seizures and exceeds WCPD’s authority under New York law. The lawsuit asks the court to declare the system unlawful and prohibit WCPD from operating it. 

“In a democracy, a police department cannot unilaterally decide—without legislative authorization—to surveil the daily movements of its own citizens without any real accountability, transparency, or oversight,” said Barry Friedman, founder and faculty director of the Policing Project at NYU School of Law. “At a time when our personal data is being collected and misused on an unprecedented scale, this indiscriminate data surveillance must not be allowed to continue in the dark.”

WCPD’s highly advanced, invasive system deploys at least 575 cameras—known as automatic license plate readers—that indiscriminately record vehicles on Westchester County roads, from residential neighborhoods to major highways, and analyzes those recordings using sophisticated AI tools. These cameras are connected to a database containing hundreds of millions of vehicle recordings, each of which WCPD retains for at least two years. WCPD provides more than 50 outside agencies with access to that data, including ICE.

“Westchester County’s mass surveillance apparatus is infringing on New Yorkers’ privacy and violating basic constitutional limits on police power,” said Daniel Lambright, director of Criminal Justice Litigation at the New York Civil Liberties Union. “Right now, the Westchester County Police Department is collecting and storing huge swathes of highly personal data—making it easy for police officers and the government to track where drivers work, who they meet, where they pray, and even which doctors they visit.”

In 2024 alone, the system collected more than 264 million recordings, more than 99 percent of which were unrelated to any suspected crime or investigation. This data can reveal intimate portraits of people’s movements, routines, and associations. The groups say WCPD operates the system without meaningful safeguards governing how officers may collect, use, or share the data. 

“This case is about whether we can move through our communities without the government compiling a digital dossier on our activities and associations,” said Jake Karr, staff attorney at the Knight First Amendment Institute. “We shouldn’t have to worry that we’re being watched and recorded every time we get behind the wheel. That sort of mass surveillance should have no place in an open, democratic society.”

The complaint also raises concerns about how the cameras are deployed, including their concentration in neighborhoods with largely Black and Latino populations that are already more heavily policed.

Read the complaint here.

Read more about the lawsuit, Umemoto v. Westchester County Police Department, here.

Lawyers on the case include Daniel Lambright, Thomas Munson, Amreeta Mathai, Chantelle Williams, Anya Weinstock, and Molly Biklen from the NYCLU; Jake Karr and Alex Abdo for the Knight First Amendment Institute; Barry Friedman and Nancy Glass for the Policing Project; and Justina Sessions, Eunice Leong, and Steven Fisher, as well as Law Clerks Ortal Isaac and Sabrina Zhang (not yet admitted to the practice), for Freshfields US LLP.

For more information, contact: Gabriel Tyler, gabriel.tyler@knightcolumbia.org 

]]> /content/westchester-drivers-challenge-county-police-departments-warrantless-mass-vehicle-surveillance-system Tue, 09 Jun 2026 00:00:00 -0700 <![CDATA[A Nongovernmental Disbursement Structure to Fund Research]]> https://knightcolumbia.org/content/a-nongovernmental-disbursement-structure-to-fund-research There is no perfect way to fund higher education. Relying chiefly on tuition favors wealthy students and results in underfunding of the research mission of most colleges and universities because students who see themselves as customers understandably would prefer that the money they spend produce concrete benefits to them in the form of teaching and administrative services rather than add to the general storehouse of knowledge available to all of humanity.

Relying chiefly on donors risks directing an institution’s mission to the donors’ priorities, which will not always align with the priorities of faculty, students, administrators, and other stakeholders. A wealthy alum who is the CEO of an oil company might be happy to fund a new but mostly unnecessary stadium that bears his name or to endow a chair in economics but reluctant to fund the climate science initiative favored by the faculty, students, and administration. To be sure, canny university leaders gently nudge donors to support projects the former would fund in any event and then, because money is fungible, direct additional resulting resources where most desired, but this tactic is not always available.

Government funding of research carries the same risk of mismatch with internal priorities that donor funding does, and, as we have seen since the start of the second Trump administration, it carries additional risks because of the sheer size of the numbers involved. The single largest gift to a university was Michael Bloomberg’s 2018 one-time donation of $1.8 billion to Johns Hopkins University, his alma mater. But for decades Johns Hopkins has also been the recipient of the most federal grant money of any university, collecting $3.6 billion in just fiscal year 2024. Such largesse creates dependency. Thus, in 2025, in response to Trump administration cuts to the U.S. Agency for International Development and other cutbacks, Johns Hopkins lost $800 million in revenue, which led to thousands of layoffs, followed by a hiring freeze and other austerity measures.

To some small-government libertarians, the remedy is to greatly reduce the federal government’s role (and perhaps the role of state governments as well) in funding higher education (and much else). If money provides leverage, their argument goes, a substantial reduction in government spending results in a substantial reduction in leverage. The libertarian claim is not entirely wrong, but it is only a partial solution to the problem of government pressure, and it would throw the baby out with the bathwater.

The libertarian approach is at best a partial solution because the government has forms of leverage independent of direct funding. The government can increase taxes on endowment income, as it did in the “one big beautiful” tax-and-spending changes Congress enacted in 2025. It can deny visas to foreign students, as it attempted with respect to Harvard University in May 2025. Although a federal district judge preliminarily enjoined the Trump administration’s visa denials as unlawful retaliation against Harvard, the government has appealed that ruling, and, as we have seen in multiple settings, the likelihood of ultimately prevailing against the Trump administration is no guarantee that the administration will not cause targeted actors substantial interim damage. Beyond taxation and immigration, the government has other powers it could abuse to threaten universities and other knowledge-producing institutions. Ending or substantially reducing government funding would not prevent such abuse.

Moreover, ending or substantially reducing government funding of universities and other knowledge-producing institutions would be ill-advised quite apart from its impact on leverage that could be abused. Incentives to maximize shareholder value lead the private sector to underinvest in the kind of basic research that ultimately redounds to the benefit of the broad public. As noted above, other sources of funding (chiefly tuition and private donations) do not adequately fill the gap. Thus, as a coalition of leading public and private research universities put the point: “Since World War II, public sector investments in basic scientific research have formed the backbone of American innovation and ingenuity—helping our nation lead the world in scientific discovery, technological advancement, and economic growth and prosperity.”

Is there a way to provide government funding without risking undue governmental influence? Maybe. The key is to create dedicated funding streams over which the executive branch lacks the ability to exert influence.

In the past, that might have meant creation of an independent agency with disbursal responsibilities, such as the research councils one sees in the United Kingdom. By law (under the so-called Haldane principle), their “funding decisions are made independently of government.” However, this model will very soon be unavailable in the United States, because U.K. research councils, while acting independently of political interference, are nonetheless governmental entities. Given the very high likelihood that the Supreme Court will invalidate removal restrictions for the principals of nearly all independent agencies in Trump v. Slaughter, some other mechanism must be found.

Luckily, several alternative models are available. Perhaps the most straightforward would be for funds to be appropriated to a privately held escrow account or trust, much in the way that municipal bonds are made payable through irrevocable arrangements.

The Supreme Court has offered only the slimmest of grounds for distinguishing the Federal Reserve Board of Governors from other independent agencies, but it has pointed to the Fed’s “quasi-private” status. We can understand the significance of that status by reference to the ostensible constitutional harm caused by independent agencies: They assign executive power to government personnel and entities not answerable to the president via removal, but where power is given to a quasi-private entity, that power is more difficult to characterize as executive in nature. It follows a fortiori that empowering a truly private entity to make only ministerial disbursements would not undercut Article II’s Vesting Clause or its Take Care Clause, both of which are typically invoked to challenge independent agencies.

There are already some federal models for private entities to disburse public funds, such as Federal Home Loan Banks. To completely eliminate the risk of invalidation in the event that the Court articulates a very restrictive view in Slaughter, state-chartered entities could be deployed, although direct or indirect control by states could place funding at risk for those knowledge-producing institutions in states led by politicians who share the current presidential administration’s authoritarian proclivities.

I conclude with two caveats. First, I recognize that legally insulating federal funding streams from executive oversight would not eliminate all forms of leverage, just as the libertarian approach of eliminating such funding streams would not. But, as noted above, preservation of such funding is valuable in itself. A partial solution that keeps the baby alive is better than a partial solution that throws the baby out with the bathwater.

Second, one might worry that without the government’s ability to withhold appropriated funds, a future enlightened presidential administration would be unable to enforce Titles VI and IX of the Education Amendments of 1972. That need not be, however. For one thing, prior to the Trump administration, the Department of Education (DOE) had never deployed the ultimate sanction of a funding cutoff in response to Title VI or IX violations by a college or university. For another, Congress could amend federal law to switch the default—so that the administration would need to go to court and bear the burden of proving prove civil rights violations in order to obtain a court order to a disbursal entity to curtail payments.

That kind of a change might even garner support from Republicans in Congress who have sometimes complained about heavy-handed actions by the DOE under Democratic administrations. Although Republicans’ ire was mostly focused on the substance of DOE actions—involving rules governing the investigation of sexual assault allegations during the Obama administration and rules governing transgender status discrimination during the Biden administration—there could be bipartisan support for curtailing unilateral executive power in this domain more broadly.

]]> /content/a-nongovernmental-disbursement-structure-to-fund-research Tue, 09 Jun 2026 00:00:00 -0700 <![CDATA["Lawyering Without Law" Transcript: Ep. 3]]> https://knightcolumbia.org/content/lawyering-without-law-transcript-ep-3 Katy Glenn Bass:

There is a normative erosion going on and it starts in law schools and it goes all the way through the legal profession in what the value of law is and what the value of an independent legal profession is. And what the value or even idea of impartial judging is and a disbelief that any of those things are actually possible ever.

Hello and welcome to Lawyering Without Law, a new podcast by the Knight First Amendment Institute, where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country slide into authoritarianism. I’m Katie Glenn Bass, I am the research director at the Knight Institute. My co-host Madhav Khosla is unfortunately out sick this week, but we still have a great show for you, featuring our guest, Professor Deborah Pearlstein. Professor Pearlstein is the director of the Princeton Program in Law and Public Policy, or P*Law for short, and Charles and Marie Robertson, visiting professor of law and public affairs at Princeton University. Her work focuses on constitutional law, democratic governance, civil liberties, and executive power, particularly during periods of political instability and institutional stress. In this conversation, we’ll talk about the forces that shape lawyers’ sense of professional identity, the current state of democracy in the United States, and how lawyers should respond in moments of institutional strain. Deborah, welcome to Lawyering Without Law. Thank you so much for joining us today.

Deborah Pearlstein:

Thank you so much for having me. I’m delighted the podcast is up and running.

Katy Glenn Bass:

Oh, thank you. I have really been looking forward to talking to you in particular because I know you have been thinking about this specific set of questions about lawyers’ professional identity about the relationship between the legal profession and the rule of law for quite some time now, for longer than I have certainly. And I know you have a book coming out later this year called Losing the Law. So to start off, could you tell us about that book project and how it came about and how it has developed?

Deborah Pearlstein:

Yeah. So I started working on this book project I think back in 2022 or ’23, but in fact, it grew out of work that I had done for many years on constraints on executive power. And I was interested in, among other things, the role of lawyers in the executive branch as a constraint or not on political decision making that the executive made. And I had done a fair bit of work on that question. And then as we saw the first Trump administration unfold and especially in the catastrophic end when there were not only all kinds of challenges to the election in court. But the post-election series of efforts to challenge the election culminating obviously in the January 6th attack in 2021, lawyers were front and center in that conflict. And for better and worse, that is to say, if you think about the legal profession, and I think it’s important to talk about the whole profession, which includes not just lawyers, but judges and law students, from soup to nuts, so to speak. There were really very, very different responses and it did not at all track partisan lines per se.

So we saw many, many lawyers and judges including in the Department of Justice, including lawyers who had been appointed by Trump himself in the first administration. Plenty of Republican appointed lawyers on the bench and obviously Democratic lawyers and judges as well. Pushed back very hard and in critical and ways at pivotal moments and were instrumental constraints, not just on executive power, but if you think about this in constitutional democracy terms, were the bulwarks. These were the guardrails of constitutional democracy. They played a central role in helping prevent the United States from sliding into a very different system of government entirely. So that was one set of lawyers. And on the other side, or on the other hand, you saw very different kind of lawyer. And at the most absurd end, there were lawyers like Rudy Giuliani, but there were also people in the Department of Justice like Jeff Clark and others who lied, who not only lied publicly and repeatedly about what actually happened and what they knew and what the evidence showed, but who also lied to courts about what was happening.

And we had thanks in part to congressional hearings and many other sources, a lot of information about those particular individuals, what led them to do what they were doing, why was it that some lawyers seemed to feel really bound by legal professional norms and some simply didn’t seem to feel that way. And that was really the impetus for writing the book, which ultimately I anticipated that the book would conclude with a chapter or a couple of chapters on the dangers of what my friend Brad Wendell would call the bad lawyers of 2021. But in fact, what it concluded in is here is how we see the effects of what has given rise to this category of lawyers playing out in massively accelerating Democratic backsliding in the United States under Trump 2.0.

Katy Glenn Bass:

Yeah. And we are still right in the middle of all of that.

Deborah Pearlstein:

Absolutely.

Katy Glenn Bass:

So I know in your work you traced the roots of the current situation back to the Reagan Department of Justice. You trace a line from that up to the lawyers who helped Trump try to overturn the 2020 election. So for listeners who haven’t followed that history as closely as you have, what are the links in that chain that people should know about?

Deborah Pearlstein:

There are a lot of different links there. One is after the Watergate scandal in the 1970s, there was a real revolutionary moment in the legal profession. When it became clear as we saw through criminal prosecutions of lawyers, a role that lawyers had played in aiding the president’s corruption. And the legal profession across the board really said, “Okay, what can we do in the profession to prevent this from ever happening again?” One of the major sets of reforms happened in the Department of Justice itself that were designed to check the ethics of justice department lawyers. So there were a set of offices created inside the Department of Justice. The ABA issued a revised set of model rules of professional responsibility, making clear that its basic ethical rules for lawyers also applied to lawyers who were parts of organizations including the government. And eventually it became clear that the courts were going to enforce these rules or were going to attempt to enforce these rules.

But even as all these constraints were being put in place and adopted really widespread ways by the profession. In the early Reagan administration, there was an effort to design a theory of executive power that had the effect of calling into constitutional question all of these constraints on executive branch lawyers. The constitutional idea was that the executive had to have total control over all personnel and policymaking inside the executive branch. So even if Congress passed a law that said, for example, all government attorneys are bound to the same rules of professional ethics as every other lawyer in the state where they practice, even that would pose a constraint on the president’s ability to tell lawyers they have to do whatever the president wants them to do.

And this played out in a variety of ways inside the Department of Justice as there were repeated efforts, for example, to limit the office called the Office of Professional Responsibility that did end up getting charged with supervising legal ethics on basically this separation of powers grounds that this professional apparatus is an intrusion on the president’s total control over the executive branch, even if that apparatus is designed to ensure truth telling by lawyers. And it turned out that those efforts, while they were failing in the courts throughout the 1980s, and really in key respects, haven’t succeeded in the courts until very recently, were having tremendous impact inside the Department of Justice where the ethical checks that were created were really kneecapped from the beginning.

So as major legal ethics scandals unfolded, especially beginning in the early 2000s. Those scandals, efforts to turn Justice Department hiring into a partisan exercise in a way that the law precluded it from being, efforts to deal with lawyers who lied. The lawyers who did those things met with no consequences, certainly no formal consequences inside the Department of Justice. The apparatus was strained, it was inadequate, it was incredibly slow and in part because of the obstacles were completely ineffective in dealing with those challenges.

And that had two consequences. One was, of course, there was no actual accountability for lawyers who were engaging in ethical misconduct over a period of years. And the second consequence was a much broader normative consequence for the profession. Justice Department lawyers have long been perceived as at the very top of their profession. These jobs are sought after they are prestigious, they’re very hard to get. And they have included and been peopled by some of the greatest lawyers in the United States and in US history. And when it became clear to the profession that it was possible that putting partisan interest or political gain ahead of professional responsibility could have some career benefit, it created this incentive loop that I think is not wholly, but at least partly responsible for where we are now.

Katy Glenn Bass:

Thank you. That’s a really great history. And I will just say for the listeners, I have had the privilege of reading a few excerpts from the book and it is just beautifully written and really fascinating material. So I look forward to reading the whole thing later.

Deborah Pearlstein:

Thank you.

Katy Glenn Bass:

So going back to the there’s no lying in law rule, is that still the rule?

Deborah Pearlstein:

It is absolutely still the rule. And maybe I should be a little bit more specific. It’s not actually called by anybody but me that I know of the no lying law rule. But there are a host of constraints on lawyers that are designed to ensure truth telling. And here I’ll say what one classic example of that rule is, but let me here just distinguish this maybe from the way we think about the speech rights of elected officials or anybody else, of you or me where we not licensed members of the bar. So everybody pretty much has a First Amendment right in the United States to say whatever they want with very rare exception whether it is true or false. And so the president himself or any official who works for the president can go out on the stump on a campaign trail or call a press conference or whatever it is and make up almost anything.

And not only are there no legal consequences for that, that is a First Amendment protected right that that person has to say things even that are untrue in almost all circumstances. If you or anybody else walk into a courtroom and take an oath and lie under oath, you can be criminally prosecuted for perjury. If a licensed lawyer like me walks into court and lies to the court, whether we are under oath or not, that is violating what the Bar Association rules call the duty of candor. And that particular rule says it is a violation of the rules of professional responsibility to lie to a tribunal. And lawyers have, you could think about it as limits on their speech that other professionals don’t have. But if you think about it not in terms of people or individual rights, but in terms of the function of the courts and the function of the legal system, one of the central norms that distinguishes law from politics in the United States is law remains or is supposed to remain. And by rule, a host of rules remains a reality-based profession.

Without that constraint, there become many, many, many fewer differences between law and politics and it very quickly loses its not only authority but legitimacy as a separate system, right? Nobody elects us, nobody elects judges. Why should we listen to them? And the reason is presumably doing law is different from saying whatever we want or doing politics. Okay. So that’s where the no lying in law rule comes from.

Katy Glenn Bass:

I think that’s a really important distinction to make between law and politics. The fact that the legitimacy of the legal profession rests on this idea that lawyers are following this strict set of ethical rules and that they respect those rules. Some of the most effective resistance we have seen to Trump in both his first and second term has come from lawyers. Has been in the first term, it was the lawyers in the room who said, “No, you can’t do that.” Second term, we have fewer of those lawyers in the room. We do still have a lot of lawyers within the government who have chosen to resign rather than to go along with things that they believe to be illegal or unethical. We have judges who are rejecting claims that are meritless, the presumption of regularity that judges have long afforded to the government in cases brought before that is really breaking down before our eyes.

So how do you sort of measure these things? I fully agree with you that a lot of the behavior that we are seeing among lawyers is really alarming. But there is also this group of lawyers, this behavior that we see from lawyers that is what we would expect from people who are taking ethical obligations seriously.

Deborah Pearlstein:

So I think that’s a really important question. And in a chapter of my book that I rarely in advance, rarely give to people who are lawyers or know anything about law to read. It turns on why lawyers would behave that way in the first instance, right? In other words, when I talk to my political science colleagues, the notion that a court might abide by an earlier ruling because they believe that they’re supposed to, unless there’s a really good reason not to and that that’s a sufficient reason. Find that almost impossible to believe, right? Almost impossible to believe that there is some independent, whether you think about it as a moral or philosophical or professional code or set of beliefs that distinguishes law from politics. I think there are at least three. One of them we’ve already talked about and that is what I’ll call the norm of legitimacy, the idea that law is different from politics because you can’t lie.

But there are also two other norms that I think are really pretty important in this context. One is what I’ll call a norm of stability. And if you’re a member of Congress and you’re elected, often you’re elected with a mandate to change how things are. You’re certainly not elected with any responsibility or expectation that you will pay much attention or need to pay much attention to what the last guys in that office do. In fact, it may be central to your job to change what we’ve been doing and we don’t call that precedent busting or norm destruction or anything else. We call it usually democracy, right? That’s what the job is supposed to be. But lawyers and judges are trained from day one of law school to start with, “Well, what is the law now?” Right?

Katy Glenn Bass:

Mm-hmm.

Deborah Pearlstein:

Not first. How do we apply it in this case? How might this case be different? But first, either what a judge has said before, what a legislature has said before, what your own court has said before and that’s where you start. And that doesn’t mean that that is the end of the inquiry, but it is the beginning of the inquiry. And if you’re going to do something different from what’s happened before, you have to explain why and what’s different. And do so in a way that is justifiable and persuasive not only to a judge or sometimes multiple judges, but that the judge can be persuasive in explaining it publicly as well. That’s the normal stability. And it’s not just there in stare decisis, but in every body of law. If you think about the law of contract, there are a host of rules that say, “Stick to what the parties agreed to unless there is some exceptional reason not to.”

In criminal law, we have a million of these rules and norms like the expos factual rule. You can’t prosecute somebody for something that wasn’t a crime at the time they committed it because that would be unfair. So there are a host of examples of this norm of stability. That really distinguishes law practically I think from almost every aspect of policy and politics and in key respects. And then there’s one last norm, that is what I’ll call a norm of modesty. And this is the idea that is of the last 120 years plus in the United States or more, that recognizes that law is not a science. We’re not searching for some physical truth in the universe. It’s not like looking for laws of physics, it’s really an exercise in interpretation. Even the simplest laws and there are a million debates we can have about interpretation and procedural rules that it surrounded and a host of other things.

But if that’s your understanding and that has been the overwhelming understanding among lawyers and judges for, as I said, well, over a century. Then you probably have a sense of modesty about your role, especially if you’re a judge. If you believe that the enterprise you’re engaged in is not handing down some either religious or physical or mathematical truth about the universe, but is really just doing your best to read a text based on a lot of different kinds of evidence. Then probably you want to develop norms that say, “I’ll decide less rather than more.” I will just answer the question of this dispute in this case, as opposed to trying to opine much more broadly on what I think the cosmic universe requires or even the separation of powers. And those things I think are the norms not only that most lawyers really, really believe and judges, but that are and have been most susceptible to attack and most subject as I described to erosion in the last 30, 40 years.

Katy Glenn Bass:

Thinking about the erosion of those norms, I know one thing that you touched on earlier and you’ve touched on in your work as well is the influence of the conservative legal movement over the course of these last decades and certainly we’re seeing it now. And often that’s shorthanded as the Federalist Society or FedSoc, but as you discuss, it’s a much broader set of influences than that. But can you give us a little more of the history there and the influence that that movement has had on these norms that you’re talking about?

Deborah Pearlstein:

Yeah. And really two different questions.

Katy Glenn Bass:

Sure.

Deborah Pearlstein:

So let me just start with the thumbnail history of the conservative legal movement, which is born in the early 1980s. Most folks date it to this conference that was held at the law school that was organized by students and some law professors, but it quickly in part because of Reagan’s election and in part because of a lot of interest in outside funders becomes a movement of lawyers. Really elite lawyers to start, beginning in law schools who quickly become the young lawyers of the new Reagan administration and law professors who very quickly go on to be judges appointed by President Reagan. And the original goals of the movement are essentially identical to the goals of the then Republican Party.

So 1980s, Reagan, we are going to roll back federal regulation. We’re going to get government out of the regulation of private business on the one hand. And on the other hand, sort of the deconstitutionalization of rights that we think are problematic. And that is everything from criminal procedural rights like Miranda versus Arizona. You have the right to remain silent to obviously individual rights like the right to abortion under Roe versus Wade and a host of constitutional decisions, including racial equality decisions that are in between. And that’s really the elected goal, the platform goal of the Republican Party. And those are the kind of policy goals that the legal movement embraces.

A central reason why there’s a legal movement. And over time, this grows up not just from this very elite group, although there still is a very elite core of law students and law faculty and federal judges and Justice Department and other federal lawyers. But in part through the success of organizations like the Federalist Society becomes there are chapters of conservative legal movement in the FedSoc in every law school in the country over the ensuing years. And a huge growth in conservative public interest groups and litigation shops and increasingly law firms and others. And obviously a growing number of these movement lawyers who are appointed to the federal bench over this period of time.

But the reason it becomes a legal movement in the first instance is because it’s very clear from the beginning, even as Reagan is elected president and is reelected overwhelmingly in 1984. So there is huge popular majority in principle for this political agenda. It is clear to this group that it cannot be achieved through ordinary electoral means. In order to get rid of the administrative state to roll back federal regulation, the most direct route would be go to Congress and get them to gut the EPA, for example, or whichever other regulatory agency you don’t like. But in the 1980s, Congress had been in the uninterrupted hands of Democratic majorities for the previous 50 years. And even if the Republicans won a majority of organizations and agencies like the EPA, were pretty popular with people and they didn’t think they were going to be able to do it that way.

So what they needed was a theory of constitutional power that said, “Actually Congress doesn’t have the power to tell executive branch agencies what to do, even though Congress created the agencies. Really, this all needs to be about presidential power because the presidency we can win.” And that was on the regulatory side. And then on the right side, all of these rights from Miranda versus Arizona to Roe versus Wade were not statutory. They were now constitutional rights. They were decisions of constitutional interpretation by the Supreme Court. Under Article 5 of the Constitution, you could go to the people, a super majority of the people and amend the Constitution if you didn’t like it. But again, most of these rules were extremely popular and increasingly so over this period of time so that seemed unlikely. And the only other way to get rid of Supreme Court decisions was to get them to overturn those previous decisions and not just one or two, but dozens or even hundreds.

And so they needed a theory that would justify for lawyers themselves and judges who continued to believe at this time in the norm of stability. That something in the Constitution not only allows us but requires us to overturn dozens of decisions at the Supreme Court and that those two ideas, unitary executive theory in the realm of executive power and originalism on constitutional meaning are where those ideas came from and when they began to take root.

Katy Glenn Bass:

Right. So I am wondering if you think that there is a comparable legal movement or even the beginning strains of one on the left. You could call it progressive, but I think even more broadly, just the left liberal spectrum. I also wonder, have you seen that historically?

Deborah Pearlstein:

Yeah, that’s a great question and there are a lot of different pieces there, but let me say maybe just a couple of things. First of all, there have absolutely been social movements, political movements, all kinds of movements before. And the conservative legal movement itself very self-consciously was based in its design in its early days on the civil rights movement and its tremendous success. Now they focused on the civil rights movement’s tremendous success in the courts, but one thing that really distinguishes what we now call the conservative legal movement from the civil rights movement writ large is the civil rights movement was always a multifaceted, multidimensional effort. The litigation strategy piece of the civil rights movement was always a part. And in the beginning, in the early 20th century, was a secondary part of civil rights movements strategies more broadly, which had huge legislative components and all kinds of other things.

And ultimately, of course, it was the legislative achievements of the 1964 Civil Rights Act and the 1965 Voting Rights Act through enormous majorities of Congress that actually succeed in... We’ll just take the Civil Rights Act. In getting decisions like Brown versus Board of Education that said, “De jure racial segregation of schools is unconstitutional.” Schools don’t actually start to desegregate until after the Civil Rights Act itself 10 years after Brown versus Board of Education comes down. So that movement, just that particular movement is much more through its history and especially through its most active decades tied to this multidimensional strategy that includes both litigation and popular strategies and all kinds of other things as well.

Okay. So it’s distinct in that way just from the most important comparable or potentially comparable social movement we might think of at the time that has courts if not uniquely in their target. At least one of their targets for achieving social change, for sure. But there’s another distinction that I think may be more relevant and that is originalism, but in popular terms of political terms originalism these days is thought of as code for conservativism. And I don’t think there’s ever been a kind of theory of legal interpretation that’s been more associated with a particular political party than this one, but it wasn’t just designed to achieve conservative outcomes. They thought originalist interpretation would make it more likely that the Constitution would be interpreted more narrowly, that you wouldn’t find, for example, a right to abortion in it. But it was also a very different kind of strategy of legal strategy.

So unlike the Civil Rights Movement that says to the courts and everyone else, you’re misinterpreting what equality means under the 14th Amendment, for example. And Brown vs Board of Education and a lot of the cases that flow from there are about equality under the 14th Amendment or under the 15th Amendment or the like. Here, regionalism wasn’t just a way of telling the courts you got particular decisions wrong, there is no right to abortion. In fact, it wasn’t about that directly at all. It was a way of telling the courts, “You’ve been doing the law wrong, all wrong.” It was a much more existential first order attack on how the courts did their business. And it had to be. They needed a theory that would support overturning generations worth of rulings that were already on the book.

So it wasn’t enough to just say you’re misinterpreting this clause or that clause. It’s you have been approaching the job of constitutional interpretation all wrong. The movement essentially carried a promise that the courts would start behaving in a very different way. And if the courts weren’t behaving that way, then they weren’t really courts at all. And that’s part of why I think this theoretical idea has become so important in destabilizing the norm of stability that is actually not about one political view or another at all.

Katy Glenn Bass:

I had actually not thought about originalism’s role in that way. That’s very insightful. I’m going to switch topics for a minute because I want to make sure we talk about the response of another set of lawyers, which is lawyers at big law firms under the second Trump administration. They are targeting firms that have employed people that Trump perceives as as enemies or firms that have participated in cases against Trump in some way. So it’s retribution just very straightforwardly. But what we see in terms of the response of those firms is that quite a lot of them immediately cut deals with the administration. Even firms who have not actually received an executive order targeted at them yet, they go ahead and they preempt orally make deals with the administration to try to get the target off of their backs.

And then you see a different set of firms that do fight back and that immediately file suits and are successful in winning injunctions against the administration enforcing these executive orders. So I’m just wondering, how do you think about that response in terms of the work that you’ve done in this broader sense of how legal profession identity shifts and how legal ethics understanding shift over time?

Deborah Pearlstein:

That’s a really good question. And I think in part, and in the first instance, what we’re seeing with the firms is primarily their belief that they’re responding to very specific business incentives. And in part, we can see that not only from what they say, which is that, but in the difference between how the different firms responded. So the firms that have sued to say the executive orders are unconstitutional, those firms are firms that primarily characterize themselves as litigation shops, as litigation firms, right? Their brand identity is fighter and that’s very much what they’re doing. Now they’re not solely litigation firms and so forth, but it’s certainly a central part of their brand. The firms that raced to sign deals. First and foremost, Paul Weiss, have increasingly become firms whose business is dominated by enormously high earning partners who work on mergers and acquisitions, who work with private equity firms and that business in particular quantities brings in enormous, enormous firm assets and it gives those particular high earning partners massive outside influence in their firms.

So even where you have firms. And I think this is the case for most, where a majority of partners and certainly majority of lawyers would say, “Well, this is obviously unconstitutional and illegal and the president can do this. And it’s completely unsurprising that four different federal courts have already concluded. This is unconstitutional and illegal and we should sue and not worry about it.” Are overwritten by really small and usually extremely hierarchical law firm management decision making processes that say, “Well, there’s a lot of money at stake.” And I think in this case, that’s the overwhelming piece that’s going on. Now there is unquestionably intersection with some pieces of the story that I tell about the erosion of norms. And it’s not so much these big firms themselves but the lawyers who are working in the administration now. And I think this is most visible in this really dramatic instance that happened with the Department of Justice in the defense of these executive orders themselves.

So four different firms sue, four different federal judges and four different courts in lower courts say these orders are obviously unconstitutional. No. And on the eve of the deadline for filing their appeal, is the government going to appeal these rulings or not? The government says, “We’re not going to appeal.” And all the firms say, “Great with us. Fine. These now go away.” And the day after that, the Justice Department reverses its position and said, “Actually, actually, we take it back, we are appealing. What happened there?” Well, maybe it’s the president himself, maybe it was the then attorney general. It’s unclear, but it seems pretty clear to most folks who pay attention to these cases that there was a reason why the Justice Department wasn’t going to appeal them and that’s because there’s no good case on the law there.

And the odds are they’re going to lose. The odds are overwhelming they’re going to lose even in the appeals court and even in this Supreme Court. But those aren’t the only lawyers working in the Department of Justice anymore. And Trump came to office for some of the reasons I have talked about already and others I can describe with this growing pool of available lawyers. Again, still a minority, the Justice Department’s having a hard time filling jobs. But an available and growing pool of lawyers who are willing to not only take positions that are not consistent with the law as it is, but take positions that are potentially in violation of their existing professional obligations because they believe that in fact that’s where professional advantage lies.

Katy Glenn Bass:

Thinking about what you just said in terms of some of the behavior that we’re seeing from lawyers within the DOJ right now and some of the willingness to go well beyond what the law actually supports. I want to think a little bit now about the state of the United States at present, but then also what comes next. But before I get there, thinking about where we are now, what we’re actually experiencing, there’s been a lot of discussion over how exactly to name this. Particularly when Trump first came back into power in 2025, there was a lot of debate over, is this authoritarianism, is this fascism, is this autocratic legalism? Does this feel more like Weimar Germany or Orban’s Hungary or something else? And I know you’ve thought about this as well and you have a somewhat different perspective on what exactly is going on here. So can you talk about that?

Deborah Pearlstein:

I do. And I don’t know that anybody living through any massive movement or political event in history is the best person to comment on what exactly is happening until 10 years or 20 after the fact. But I think there is enormous wisdom and enormous value in the comparative democratic backsliding authoritarian playbook framework for understanding what’s happening. I think it is enormously valuable in understanding the full scope of what’s happening. I think there is simply no question that the government now in power in the United States took lessons. I don’t mean metaphorically, I mean physically went to Hungary. The vice president embraced Orban. He came to the conservative legal forum, a series of conservative conferences here in the United States, very close with the Heritage Foundation. So there is just an enormous amount that we should be paying attention to there.

But that said, the strategy that this administration has pursued, which is Trump is not Orban. Orban’s a lawyer and smart. Trump does not seem to have that kind of control or is exercising that form of rigorous control over his government. There are some people in the Trump administration who embrace the Orban model, but not all of them. And Trump himself, I’m not sure cares in particular. And a huge part of what we’ve seen out of the administration is not affecting or achieving authoritarian or authoritarian moving change through law, but is ignoring law altogether. So whereas Orban came to power with a legislative majority or parliamentary majority and immediately started putting his parliamentary majority into effect by passing a huge number of different laws and amending the Constitution and all kinds of other things.

Here, Trump comes into office, Trump 2.0 comes into office also with legislative majorities in both Houses of Congress. And instead of going to his Congress, which was probably in the early days, prepared to do pretty much anything the president asked them. Instead of saying, I want to rescind funding to this agency and I want to build a ballroom and I want to... Whatever it is he wants to do, get rid of NIH or FEMA or any agency, they just start doing it. And they do it not just with respect to budget issues but policy changes and a host of measures that whether you call them authoritarian or just radical or whatever you call them. If they had just gone to their Congress and done them through law, wouldn’t have faced nearly the kind of legal pushback and termination that they have faced very often in the lower courts.

And you can see that playing out not just on a macro scale, but the briefs they’re filing, the executive orders they’re issuing. Again, not all of them in the solicitor general’s office, the one office in the Department of Justice that deals with the Supreme Court in particular may be a modest exception to that. But everywhere else and every other legal office in the White House and the Department of Justice and so forth, which is most of them, the quality of the work is poor and unpersuasive. And they can’t find smart lawyers to go work for them and they’re driving out or have pushed out the smart lawyers who they had, who most of them would’ve done most of the things that they asked them to do.

So it feels like a very different approach. It feels much more frontally authoritarian and that has benefits to some extent from a potential pushback point of view that is I think it’s much more publicly visible what’s happening in the United States. And whether the visibility is we’re turning authoritarian or we are turning toward policies with which I wholly disagree, it has made the president’s responsibility for those things incredibly publicly visible. So that’s maybe an advantage in thinking about the after times and people’s willingness to vote them out of office or think twice.

But the one last thing I’ll say here, and this does sort of tie it back to the earlier conversation that we were having. There’s a reason that they can find lawyers who are what I’m increasingly calling legal nialists. These are people who don’t think that law is or should be any different from politics. And part of these people come from this disaffected wing of the old, what had been the conservative legal movement. And you can see this in people like Mike Davis who breaks off from the Federalist Society during the last Trump administration and forms a new group called the Article 3 Project. And this is a group that says lawyers and judges are supposed to get results. They’re supposed to produce the policy outcomes we want. And if they’re not doing that, they’re not helping.

And so that view of law and what the role of lawyers is supposed to be and what the role of the courts is supposed to be comes from a wing of the conservative legal movement that felt betrayed by John Roberts when he voted to uphold Obamacare and felt betrayed by Neil Gorsuch when he voted to conclude that the Civil Rights Act actually also extends to prevent discrimination and employment on the basis of sexual orientation. And these singular decisions where you get maybe one conservative vote were viewed as massive betrayals by a group of lawyers who had grown up being promised usually in the form of originalism conservative outcomes or thought they were promised conservative outcomes. And that betrayal has had a cost and part of the cost is originalism’s not going to get what we want, neither will any law-like approach to doing this. The kind of change we need is post-constitutional, post-legal change. And those are some of the folks who are in leadership positions in the Justice Department today.

Katy Glenn Bass:

Okay. So I think that’s a really helpful way of thinking about what’s happening within the legal profession, this rise of a subset of the profession that adheres to the legal nihilism idea that there isn’t or shouldn’t be any distinction between law and politics or the rules that you play by to get the outcomes that you want. Which is pretty dark, honestly, if that’s where we are and if those are the people in the administration right now. But staying with that view, what does that tell us about what is needed to try to reform or enact consequences for the lawyers who are engaging in that kind of behavior?

Deborah Pearlstein:

Yeah. So I want to say one more thing that takes us even to a slightly darker place and then we end at your question.

Katy Glenn Bass:

Yes. Great.

Deborah Pearlstein:

And this goes back to the question you were asking earlier about, “Do we see any of this on the left?” And in the legal nihilist camp, this is the group that I was describing. I don’t know if I can call folks on the left a legal nihilist in this same sense. But there is a growing group on the left of legal scholars and some legal advocates on the left who think the judges we need to appoint are judges who will vote for our outcomes. Not people who are sort of moderates like Merrick Garland or Elena Kagan even, but people who are going to view the role of the judge as having a very specific moral valence and it is the moral valence that will produce the results that we want.

So there’s some important articles called movement judges, that’s that idea. And that is in some respects a very similar idea, it is a radically different view of what the role of lawyers and judges is supposed to be. Not so much lawyers, but certainly judges. Lawyers have always been advocates and supposed to be advocates. Judges are supposed to be something different and that’s an idea that we’re seeing gain increase in currency on the left as well. So it’s a worry. What does this mean about what we do going forward, right?

Katy Glenn Bass:

Right.

Deborah Pearlstein:

So my own view is a couple of things. I think there are institutional reforms that will help. I think that some court reforms of term limits and that kind of thing will help. I think that it is absolutely possible to reconstruct some degree of better ethical compliance mechanisms inside the Department of Justice and outside the Department of Justice that will help. I think it will be enormously valuable to do things like take the US Marshals Office, which is the group of officers who enforce court decisions and protect the courts from under the supervision of the executive branch where it currently sits and put them under the independent judicial branch where it should sit. So I absolutely think there are institutional corrections that can be made, but I also think it would be a huge mistake given these much longer normative trends that well predate Trump and that are explained by incentives other than Trump to view that as the limit of all we need to do.

There is a normative erosion going on and it starts in law schools and it goes all the way through the legal profession in what the value of law is and what the value of an independent legal profession is. And what the value or even idea of impartial judging is and a disbelief that any of those things are actually possible ever. Now part of that disbelief is driven by the most visible examples we see, how the Supreme Court behaves, for example. Which is a horrible example for a host of reasons, but it is nonetheless an incredibly powerful one because when most folks pay any attention to law, that’s the court they see. That court is exceptional in seven ways to Sunday, but it nonetheless drives this erosion of belief. That’s part of why court reform is among the institutional reforms that’s necessary, but it’s certainly not sufficient. And I think every aspect of the profession, including and especially beginning with law schools has a lot of work to do.

Katy Glenn Bass:

I certainly agree with that. And what about exacting disciplinary consequences for individual lawyers? How effective do you think sanctions like disbarment or other forms of sanction are for deterring conduct that really violates democratic norms?

Deborah Pearlstein:

Yeah. So I think having that there is incredibly important and preserving a mechanism as independent as possible. A mechanism for attorney discipline is incredibly important, especially as applied to these baseline rules like the no lying in law rules, the rules that are uncontroversial within the profession broadly speaking. And I think there are ways of strengthening and rendering more independent that system as well that are at the level of institutional checks. But there’s a caution there as well. And that is as we’ve seen this evolution of the profession and here the conservative legal movement is part of the story gain. It is today possible to proceed on a professional track from the day you walk into law school through the day you retire in your career, whether your career ends as a judge or as a lawyer or in any place in between, to proceed on an entirely partisan track? To work for a conservative law journal, to go to work for a conservative public interest journal, to go to work for a firm that leans conservative to live in that universe entirely.

And it’s increasingly possible to do that on the left, although there are multiple tracks as opposed to a singular track. And if that’s the case, and especially again on the right where there is so much money and so many resources. One of the reasons the Justice Department failure to respond to ethics crises of the 2000s mattered so much wasn’t just because they didn’t suffer formal consequences, the lawyers who violated ethics also had enormously soft professional landings. So even the ones who faced disciplinary consequences could go back to tenured professorships or could instead of practicing law as a licensed attorney, have some other position or even be nominated to the federal bench where licensure by a bar isn’t required to practice as a federal judge. And that availability of soft professional landings of whatever shape. But if you’re employed and you’re well employed, some of the bad lawyers of 2021 went to work for the new Trump administration, law licensure notwithstanding.

The existence of that possibility really undercuts the potential value of professional discipline. We can disbar you and you will still have a job is not a good case to be made. Now again, those are some exceptional cases, but it’s a model we’re seeing replicated repeatedly. So I think bar discipline is a critical element, but it is necessary and not sufficient to the broader regime of normative reputational checks that we have a lot to do to reinforce.

Katy Glenn Bass:

Yeah. The reputational checks is a good way to put it. That was something that I was struck by as I was reading one of your chapters is this, the availability of the soft professional landing. It’s both absolutely right in terms of muting the effect of any of the other consequences that we might be able to enforce. But also probably one of the things that I am most pessimistic about in terms of our ability to change it significantly, just coming out of this administration and thinking about where some of these lawyers are likely to land, I would hope that they will not be able to return to or take up posts at top law schools or fellowships in prestigious institutions. But it is too easy for me to envision how that might be the case for many of them. I think that will be difficult in terms of sending a message.

So you talked earlier about the efforts to reform government lawyering within the DOJ after Watergate and how they were almost immediately undermined and eroded by people in those institutions. So given that history, is there any structural reform that we can enact that you believe would be more durable or are we Sisyphus where it’s going to be a cycle, it breaks down and then we build it back up and then it breaks down again and we continue that way.

Deborah Pearlstein:

So that’s a really important question and there’s good news and bad news. The good news is I really still believe and we’ve seen in the number of Justice Department lawyers who have fled rather than violate the professional responsibility, that vast majorities of lawyers in the profession still hold to the normative distinction between law and politics and the normative rules of the profession, the ethical rules of the profession that we’ve been talking about. So the ability to repopulate or reconstitute or reconstruct truly a Department of Justice and government lawyering I think there’s a real moment here. I think there’s an opportunity. I think there are many, many thousands of lawyers who are appalled with what has happened and they are on the right and left. And so I see a lot of hope there.

In terms of though enacting sort of more formal reforms and setting aside for a minute, the ethics checks that we were talking about. So you could take that ethics role out of the bar associations in particular and attach it to the courts in a way that would allow them to in a more expedited way, get through imposed ethical sanctions on attorneys who play these kinds of games. But so setting aside that kind of discipline, what if you wanted to codify, so enact into legislation, the rules that used to exist by norm and by Justice Department manual, that there should be limited context between the White House and the Department of Justice. That you should not be able to bring a prosecution or launch a criminal investigation against an individual solely because you oppose that person’s politics or because that person is a political enemy or the kinds of things we are seeing now with increasing frequency out of this administration.

You could enact a law that says what previously just executive branch manuals said, which is don’t do that. And enacting a law I think is probably a really important strategy and a really important move. There is one giant caveat there and it’s a real unanswered question in principle. But now the Supreme Court has embraced the unitary executive view that was lurking behind the scenes of the Department of Justice in the 1980s. The view that because the president has to have total control over all personnel under his supervision, that includes all attorneys who work for the government, who work for the executive branch. And to the extent Congress imposes restrictions on how those attorneys do their job, even if it says as a matter of ethics, “No lying.” That too is a constitutional infringement on the president’s power to direct personnel under his watch. If we pass a law codifying those kinds of previously norms, they will be challenged by someone on the right as a problem under unitary executive theory, under the president’s constitutional power and that challenge will go to court and ultimately the Supreme Court.

Supreme Court has, especially in Trump versus United States, now written a lot of language that suggests that exactly those kinds of laws might be problematic exactly in the context of prosecutorial conduct. And my view is while we draft that legislation to codify those standards, we should also draft a constitutional amendment that says, that is, you could call it the Unitary Executive Amendment or the Anti-Unitary Executive Amendment, but that returns us to some rational place of executive power and Congress’s role as the first branch. And for that matter, the court’s role, because these people are ultimately officers of the court in preserving the relative autonomy of law from politics in the United States. I know that many of the constitution is hard. This is the work of generations, it is a 40-year project at best, but so too was the conservative legal movement. And with a movement willing to invest the time and resources, as we’ve seen, the payoffs can be staggeringly large.

Katy Glenn Bass:

Okay, I love that. That’s actually a great note to end on because that is a truly creative proposal for reform that I have not yet encountered, but actually would address a lot of this. And you’re right, it is the work of generations. This is not something that the next Congress could just take care of for us. I think that’s a great idea. Deborah, this has been a really wonderful conversation. Thank you so much for coming on the show and for talking to us about all the work that you’re doing.

Deborah Pearlstein:

Oh, it’s been my pleasure. Thank you so much for taking the time.

Katy Glenn Bass:

And that’s it for this episode of Lawyering Without Law. Join us next time for a conversation on executive power and the war on terror with Alberto Mora. Lawyering Without Law is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote, Fact Checking by Ashna Agarwal. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show was designed by Jay Volmar. Thanks to Deborah Pearlstein who joined us for this episode. Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K. And follow us on social media. Bye for now.

]]> /content/lawyering-without-law-transcript-ep-3 Fri, 29 May 2026 00:00:00 -0700 <![CDATA[Toward Collaborative Disagreement]]> https://knightcolumbia.org/content/toward-collaborative-disagreement It is common wisdom that Americans live in information echo chambers that shape their views of the world, stifle dialogue across ideological and cultural difference, and contribute to polarization. We all have our informational and social networks, “they” have theirs, and never the two shall meet. These segregated information silos can, it is believed, become entrenched to such an extreme that Americans do not meaningfully share a reality, disrupting collective governance and leaving us vulnerable to exploitation by profiteers and other malign actors, both foreign and domestic.

While there are elements of truth to this conventional narrative, it may also be misleading in important ways, ways that inform the most promising avenues toward overcoming our political paralysis. First, there is significant evidence that, for most people, spending time on the Internet and on social media increases rather than decreases their exposure to ideologically diverse content (in addition to increasing exposure to opinion-reinforcing content). Part of this counterintuitive phenomenon might be explained by the fact that inadvertent exposure to diverse content is more common online, but it might also reflect the fact that a significant proportion of the people we engage with online are not embedded in our closest social networks, and therefore are not (in a sense) prescreened for ideological conformity. 

Second, there is also evidence that exposure to diverse viewpoints increases rather than decreases mutual distrust and political polarization. How might this happen? There may be good reason to think exposure to contrary ideas affirms our political identities and feeds into so-called “affective” polarization, which is grounded less in specific issue positions than in partisan social identity. Awareness of the views of others can reinforce all the ways they are different from us and can inhibit our ability to be persuaded by their perspective.

One need not take a definitive position on this research, which is mixed, to recognize that any approach to diversifying the information ecosystem for individual users must take account, not just of the bare existence of diverse information flows, but also of its actual effects on the behavior of listeners and readers. Understanding which interventions are most productive also requires assessing what, precisely, exposure to information is meant to achieve.

Consider four different justifications for exposing people to diverse information:

  • Understanding. We might expose people to diverse information to promote understanding and awareness. Someone who receives information from a narrow range of sources may not be receiving a full factual picture and may not be hearing the range of arguments in support of or against a policy.
  • Persuasion. We might also seek to expose people to diverse viewpoints to try to persuade them that those viewpoints are correct or should be adopted.
  • Self-fulfillment. We might wish to promote diversity of viewpoint so that people holding diverse views obtain the fulfillment of expressing themselves and being heard. This rationale could also be expressed in terms of equality of opportunity for diverse voices to influence the public sphere.
  • Collaboration. We might make people aware of diverse information so that information can serve as an input into decision-making. This rationale is distinct from “understanding” because it is action-oriented, and it is distinct from “persuasion” because the interest in collaboration can be satisfied without the information actually convincing anyone to change their view.

These different justifications for diversifying someone’s information environment support different kinds of interventions. For example, bringing diverse speakers onto a college campus or promoting the visibility of diverse content on social media may increase awareness, but inducing people to be open to changing their views may require attention to the speaker’s identity and their rhetorical strategy. Failing to be attentive to these dynamics may promote awareness, self-fulfillment, or equality of opportunity—the values that not incidentally are heralded as underlying the First Amendment’s commitment to robust free expression—but it can be counterproductive in sustaining social trust, much less increasing it.

To my mind, the public discourse has not paid sufficient attention to the fourth of these justifications for exposure to diverse information: enabling collaboration. A personal anecdote may help set the stage. In 2022, the National Constitution Center convened three groups of scholars from diverse political perspectives—a “progressive” group, a “conservative” group, and a “libertarian” group. (I was a member of the first group.) In the first stage of the project, each group drafted its own ideal constitution. In the second stage, the groups convened a virtual constitutional convention and drafted amendments to the Constitution. Unsurprisingly, each of the “ideal” constitutions drafted in the first stage, among fellow ideological travelers, was quite different from the others. Remarkably, though, the groups were able to agree to five amendments that, if adopted, would be fairly consequential.

The key to achieving this level of consensus wasn’t that there was substantial agreement among the participants—indeed, the participants were truly ideologically diverse. The first stage of the project made each group aware of the positions of the others, but speaking for myself, this awareness was at least as alienating as it was unifying, as it clarified the degree of difference between the groups. Moreover—again speaking for myself—learning that some particular reform was supported by other participants led me to question rather than affirm my own support, as it made me worry that I had not sufficiently reflected on the consequences of the reform. This is how affective polarization works, and it’s a heck of a drug.

Nor did consensus over amendments follow from successful persuasion among the groups. The second stage of the project did not, so far as I can recall, cause anyone to revisit their highly disparate positions as to what an ideal constitution should contain.

What the collaboration stage did instead was force the groups to take collective action. Doing so requires modifying one’s position to accommodate the positions of others. Importantly, collaborative action does not require agreement or persuasion. It does require a shared commitment to the collective enterprise. Understanding the beliefs and commitments of other members of the collective enabled us to propose informed compromises.

My own experience with the National Constitution Center is consistent with longstanding research in social psychology dating back at least to Muzafer Sherif’s foundational “Robbers Cave” experiment in the 1950s. This research suggests that mere contact or coexistence can be unhelpful in mitigating intergroup conflict, but that requiring conflicted groups to focus on what psychologists call a “superordinate” task—one that no single group can accomplish alone—can induce cooperation and improve intergroup relationships.

My little anecdote and this body of research do not offer a panacea. Even on its own narrow terms—a fake constitutional convention—participants in the constitutional drafting project were not especially diverse along professional or other socioeconomic dimensions, and there is evidence that economic inequality can impede intergroup cooperation. Still, they serve to emphasize that shaping the flow of information depends in large part on what one hopes information will accomplish, and that collaboration is an important objective we may wish to prioritize.

We would do well then—or better, anyway—to imagine ways in which we don’t merely communicate, but also are required to collaborate, across difference. This might mean increasing funding for deliberative mini-publics, what the political scientist Robert Dahl called “minipopuli,” tasked with offering targeted governance proposals. Universities could increase funding for programming jointly designed by ideologically diverse groups, such as the Federalist Society and the American Constitution Society. Media outlets could be induced to provide dedicated space for co-authored commentary that provides specific policy recommendations. Platform algorithms could boost content cross-posted across ideological difference. We could continue to disagree, as we always will, but we could seek to innovate around disagreeing constructively, rather than merely for its own sake.

]]> /content/toward-collaborative-disagreement Wed, 27 May 2026 00:00:00 -0700 <![CDATA[Supreme Court Declines to Hear Challenge to Federal Policy Silencing Immigration Judges, Reverses Appeals Court]]> https://knightcolumbia.org/content/supreme-court-declines-to-hear-challenge-to-federal-policy-silencing-immigration-judges-reverses-appeals-court WASHINGTON—The U.S. Supreme Court today granted the government’s request to reverse an appeals court decision that had allowed a legal challenge to the Department of Justice policy silencing immigration judges to proceed in federal court. It also denied the cross-petition for certiorari filed by the National Association of Immigration Judges (NAIJ), which had argued that federal employees should be permitted to challenge broad prior restraints on their speech in federal court without first having to go through cumbersome and potentially futile administrative proceedings. The Knight First Amendment Institute at Columbia University represents NAIJ.

“It’s disappointing that the Court failed to take this opportunity to make clear that public servants can go directly to court to challenge broad restrictions on their speech,” said Alex Abdo, litigation director at the Knight First Amendment Institute. “Forcing public employees to wade through cumbersome and potentially futile administrative proceedings before challenging prior restraints allows unconstitutional censorship to persist. Now more than ever, we need the insights of the nation’s immigration judges and other public employees to understand the work of our government.”

In 2020, the Knight Institute filed this lawsuit on behalf of NAIJ, challenging an Executive Office for Immigration Review policy that prohibits immigration judges from speaking publicly in their personal capacities about immigration or the agency that employs them. A district court dismissed the case in 2023, holding that the Civil Service Reform Act of 1978 requires such claims to proceed through administrative review.

In June 2025, the Fourth Circuit revived the case, expressing concern that recent actions by the Trump administration may have undermined the agencies charged with hearing federal employment claims—the Office of Special Counsel and Merit Systems Protection Board—and that they may no longer be operating as Congress intended. But the court also held that, if that system is functioning as Congress intended, immigration judges would be required to challenge the policy through that administrative process rather than in federal court.

In February, the Knight Institute filed a cross-petition for certiorari asking the Court to consider that question. The cross-petition was filed after the government petitioned the Court in December 2025, asking it to reverse the Fourth Circuit’s ruling. 

“We’re disappointed by today’s decision and by the Court’s failure to address the significant free speech concerns at the heart of this case. However, this litigation is far from over,” said Holly A. D’Andrea, president of the National Association of Immigration Judges. “The case has been remanded to the Fourth Circuit, and NAIJ will continue fighting to protect the free speech rights of immigration judges, to seek meaningful review of the Executive Office for Immigration Review’s speech policies, and to ensure that immigration judges may engage in public discourse on immigration matters in their personal capacities. Justice cannot endure when judges are intimidated into silence, nor can a nation remain free when the rule of law is subordinate to the whims of political ambition.”

NAIJ is a nonpartisan, nonprofit voluntary association of federal immigration judges. Its members have long participated in public conversations and events about immigration law, including through teaching, training, and community engagement.

Read today’s decision here.

Read more about the lawsuit, Margolin v. National Association of Immigration Judges, here.

Lawyers on the case include Ramya Krishnan, Alex Abdo, Xiangnong (George) Wang, and Jameel Jaffer of the Knight First Amendment Institute, and Victor M. Glasberg of Victor M. Glasberg & Associates.  

 

]]> /content/supreme-court-declines-to-hear-challenge-to-federal-policy-silencing-immigration-judges-reverses-appeals-court Tue, 26 May 2026 00:00:00 -0700 <![CDATA[Do AI Risks Require Extraordinary Government Intervention?]]> https://knightcolumbia.org/content/do-ai-risks-require-extraordinary-government-intervention In a recent essay, Derek Thompson engages with AI as Normal Technology (AINT). He agrees with our thesis about AI’s slow labor market impacts, relying on the fact that GDP growth has so far been average, unemployment is below five percent, and even jobs that seemed vulnerable to automation show rising employment and wages. He concludes that so far, the macroeconomic picture is consistent with what we would expect from a “normal” general-purpose technology.

But when it comes to AI risks, he is far more bearish. He points to examples of cyber- and bio-risks and expresses pessimism about AI quickly becoming dangerous across many new domains. He argues that AI’s emergent capabilities make it fundamentally different from previous technologies, and that this difference justifies “extraordinary” government responses including restrictions on what companies can release.

In this essay, we lay out the downsides of extraordinary government intervention in response to new technology. We discuss proposals for improving resilience that do not require such intervention. We also discuss why governments have so far been reluctant to invest in resilience. In short, resilience requires us to get better at the *normal* process of policymaking. But sclerosis in the federal government and the ease of justifying interventions on AI companies rather than society at large make extraordinary intervention seem appealing, despite its limitations.

What happens next? Policymakers can either get their act together and invest heavily in improving resilience, or be forced to take extraordinary actions (such as on AI nonproliferation) that are more onerous and less effective.

Nonproliferation is brittle because it relies on a single chokepoint. Resilience distributes defenses across society.

A Recap of AINT’s Arguments and Thompson’s Areas of Agreement and Disagreement

Many people, including Thompson, have found AI as Normal Technology to be a useful framework for thinking about AI’s economic impacts while being unconvinced by our views on safety. In the AINT essay, we make different arguments about slow labor market impacts and resilience to misuse risks.

The labor market argument rests on the speed of diffusion: there are many speed limits between a new AI capability and its economic impact, including the need to build products, change organizational workflows, and navigate regulation. This has proven helpful both to understand why claims of rapid and widespread job displacement (such as Amodei’s claims about an imminent white-collar bloodbath) are unlikely to materialize, as well as to identify bottlenecks to diffusion that could hinder the beneficial adoption of AI.

But our argument about AI’s misuse risks depends on the offense-defense balance: whether attackers or defenders benefit more from a given capability, and our ability to build resilience in response to misuse risks. Notably, an attacker does not need to go through the slow process of organizational adoption to cause harm. We argue for building societal resilience to intervene on misuse risks and identify many interventions that we should take to reduce AI risks.

Here, Thompson disagrees with us. One reason he disagrees is that all general-purpose technologies bring about new risks, which are hard to reason about from previous patterns. But even in the history of general-purpose technologies, Thompson argues that AI seems particularly “abnormal” because of risks that are emergent and unknown even to AI developers. And this justifies plans by the government to treat AI as an abnormal technology, since it “compels the government to create extraordinary regulations that prevent private companies from selling their products and services on the grounds that they’re too dangerous.”

Thompson doesn’t define precisely what he means by extraordinary government action, and the specific interventions he envisions remain somewhat vague. Since we’ll be arguing against such interventions, we want to be clear about what we mean by the term. We think of extraordinary interventions as a spectrum defined by three factors that apply to any powerful technology, not just AI.

First, extraordinary interventions tend to be precautionary. They restrict activity based on anticipated harms rather than realized or demonstrated ones. This doesn’t mean that precaution is never warranted, but it does mean the justification needs to be stronger, since we are restricting activity without clear evidence that the harms will materialize (or that they’ll materialize exactly as we predict). Even then, an intervention is more extraordinary when viable alternatives exist that can address the risks while being less restrictive, such as investing in resilience.

Second, extraordinary interventions impose restrictions on the liberty of actors who are not directly responsible for the harms in question. When governments restrict what AI companies can release, the burden falls not on the malicious actors who cause harm, but on companies that build tools that could, in principle, be misused. This is especially pertinent for dual-use technologies. Because these tools have widespread beneficial applications, restrictions on companies can cut off beneficial access for the broader public in order to prevent misuse by a small number of bad actors.

Third, extraordinary interventions bypass normal processes of governance, and instead rely on unilateral authority such as emergency declarations or executive orders, even though the governance processes being bypassed exist to ensure that restrictions on liberty are subject to democratic accountability.

An intervention need not satisfy all three of these criteria to count as extraordinary. But the more of these factors that are present, the higher the bar should be for justifying it.

Extraordinary Government Action is Extraordinarily Costly

We agree that AI poses misuse risks. But our experience from regulating “abnormal” technologies shows how burdensome extraordinary government interventions can be. The enforcement of nuclear nonproliferation has required the IAEA, the Non-Proliferation Treaty, decades of diplomacy, ongoing investments, and even military confrontation. The tolls of these interventions were enormous, but the approach was at least somewhat enforceable because nuclear weapons depend on enriched uranium, a physical bottleneck that is genuinely hard to get around.

AI is different from nuclear weapons. For one, there is no equivalent “physical” bottleneck. The core techniques for building AI systems are well known. Adversaries (especially nation-states) can match frontier capabilities within months. Any nonproliferation regime for AI would face constant erosion.

In the face of this challenge, how could governments maintain nonproliferation? Some proposed interventions, such as the rumored executive order on voluntary commitments by AI companies for predeployment evaluations, are relatively low on the scale of extraordinary interventions. Done well, they could allow us to tilt the offense-defense balance by giving defenders more time to prepare for new capabilities.

The U.S. has also enacted export controls on chips. We think this is a modest intervention: countries routinely restrict exports of sensitive goods to maintain their lead in innovation, and reasonable people can disagree about where to draw the line. But when it comes to preventing dangerous capabilities from being widely accessible, export controls are far less effective. Open-weight models and widespread API access from frontier labs mean that the gap between frontier and publicly available capabilities is at most a few months, not years.

If the most that nonproliferation can buy us is a few months, the urgent priority should be investing in resilience so that we are better prepared when those capabilities inevitably become widely available, as we discuss below. On the other hand, if governments try to maintain nonproliferation as a way to deter the availability of advanced AI capabilities for misuse, their interventions will necessarily get more demanding.

To truly enforce nonproliferation, governments would need to restrict access to open-weight models and even API access to capable models. This would require licensing regimes that give governments ongoing authority over which models can be released and restrictions on open-weight models. We might quickly enter a state where governments exercise control over what AI research and products can be shared publicly. In fact, we have already seen concerning examples of such control, such as Anthropic’s designation as a supply chain risk, and recent rumors about licensing requirements for AI companies.

To avoid this slippery slope, those proposing extraordinary interventions should be clear about where they would draw the line. Would they support restrictions on open-weight models? What about requiring approvals for each new model release, or restrictions on the movement of researchers who build frontier AI across countries? If proponents cannot specify the limits of what they are calling for, it is reasonable to expect that the demands for increases in the government’s ability to take unilateral action will keep escalating as capabilities advance.

For nuclear weapons, once the nonproliferation regime was built, it did not need to be rebuilt every few years. But AI is not the last digital technology with powerful dual-use properties. New technologies would raise similar questions and potentially demand similar or escalating responses. So the “abnormal technology” framework for regulating AI would start to look less like a targeted response to a specific risk and more like a permanent expansion of government powers over what citizens and companies can build, publish, and research.

We have seen this debate play out before. Each new technology raises questions of what restrictions to liberty are appropriate to mitigate harms. This history tells us we shouldn’t automatically default to imposing extraordinary government interventions.

The internet allowed people to access information about how to build bombs, and in 1995, after the Oklahoma City bombing, the late Senator Feinstein introduced a bill that, in its first draft, would have criminalized the distribution of any information on the internet describing bomb-making materials or processes. (When the bill was eventually passed, it had a narrower scope, requiring offenders to have knowingly aided a crime through their instructions.)

The federal government also tried to restrict access to encryption software, arguing it would help criminals communicate beyond the reach of law enforcement. It imposed export controls and proposed requiring backdoors in encryption so that the government could always access private communications. It even started a criminal investigation against a programmer under the Arms Export Control Act for releasing encryption software.

A t-shirt with the source code for the RSA encryption algorithm, used to protest the government’s restrictions on cryptography. Source

These restrictions were eventually rolled back through a combination of court rulings and executive action. Encryption became the foundation of digital security, enabling e-commerce, online banking, and many other applications.

Yet, at other points in history, we have accepted increases in government powers in response to new technologies. The widespread acts of terrorism after the invention of dynamite catalyzed the expanding government surveillance apparatus by the FBI.

The question is whether this level of intervention is necessary to address AI risks. One response that does not require extraordinary government intervention is improving resilience.

Resilience is an Under-Emphasized Defense Against AI Risks

Resilience is the capacity of a system to withstand and adapt to harm. It was one of the main defenses we proposed in the AINT essay. Unlike extraordinary government actions like restrictions on what companies can release, resilience does not impose costs on AI companies. Instead, it focuses on improving our capacity to respond to and recover from AI risks, regardless of when or where they occur. For past technological harms, improving the resilience of systems has been key to reducing harm.

Consider cybersecurity. The internet created entirely new classes of attacks, such as worms that spread through networks, causing billions of dollars in damages. The way we defended against these risks was not by restricting access to computers or the internet, but rather through bug bounties to incentivize people to report vulnerabilities to developers, improving browsers and operating systems, automated testing, and better patching practices. All of these improved the resilience of our cyber infrastructure regardless of where the risks arose.

Automated vulnerability detection tools are another example of technology enabling new kinds of attacks. Tools such as fuzzers and symbolic execution engines have been “superhuman” at vulnerability detection for years; they can detect vulnerabilities at a scale humans cannot match. Yet, they have been freely available on open-source repositories. Since defenders had access to the same tools, they became core defensive tools, largely funded by the cyberdefense ecosystem. In fact, defenders had structural advantages in using these tools effectively, such as deeper access to the systems being tested. This in turn led to better protections for cybersystems.

Stylized spectrum of vulnerability detection capability, showing that existing tools were already vastly superior to unaided vulnerability researchers.

 

This shows how we have managed the transition from unaided vulnerability detection to vastly superhuman detection without requiring extraordinary government intervention. We agree that LLMs bring real improvements to vulnerability detection, but they build on top of decades of tooling that is already far beyond what any human can do unaided. If we have already absorbed the transition to such tools, it is worth asking whether the additional capabilities of language models call for extraordinary interventions.

To be clear, these transitions were not smooth or painless. For a brief period, the attacker-defender balance was completely upset. The idea of viral spread of malware and the resulting asymmetry was unprecedented. Fifteen-year-olds could create devastating cyberattacks that brought down top e-commerce websites and search engines. It is plausible that government intervention to improve cybersecurity could have reduced the harm caused to individuals and businesses during this period.

AI’s use for cyberattacks might once again upset the offense-defense balance, and we don’t think the AI transition will be smooth by default. Many systems that are currently under-defended, including schools, hospitals, power grids, and small government agencies, will be at real risk. Efforts like Project Glasswing and OpenAI’s cybersecurity grant program are important but insufficient on their own. While restricting access to advanced AI systems might be helpful in the short run, it is not a silver bullet in a world where open-weight models are only months behind the most capable closed models.

Addressing AI’s cyberrisks requires investment in resilience. That means AI-assisted red-teaming not just for tech companies, but for schools, hospitals, power grids, small businesses, and government systems that currently lack the capacity for defense. We should also incentivize professional security experts to find and report vulnerabilities (with or without AI use), such as through bug bounties that cover more than just tech company products. These efforts are not automatic; they require investment and planning.

The good news is this work is starting across many different industries. While this requires significant investment, it is still far less burdensome than enforcing a strict nonproliferation regime. The bad news is governments have a lot left to do to truly make the transition painless.

The same analysis applies to biosecurity. AI may lower some information barriers, but bioattacks depend on many downstream steps: procuring materials, accessing specialized equipment, and applying tacit know-how. We can intervene on those downstream steps *now* to increase societal resilience to bioattacks without imposing strong controls on AI development, such as by implementing better screening of synthetic biology orders, using AI to evaluate the riskiness of new compounds, tracking access to dangerous materials, and offensive red-teaming (such as asking trusted experts to attempt to use AI for manufacturing dangerous compounds) to find gaps in these efforts. These help regardless of whether biorisks are from AI.

If Resilience is So Helpful, Why Haven't We Prioritized it Already?

Importantly, resilience does not require extraordinary government intervention. It only requires us to get our act together on the “normal” process of policymaking and execution.

The problem is we are not great at normal policymaking. We suspect one reason why the resilience approach seems unappealing is that it requires polycentric governance in which many decision-makers work harmoniously together. This is a tough sell given that state capacity in the United States has been hobbled by decades of accumulating veto points and creeping proceduralism. As a result, unilateral actions by the executive branch are often seen as the way out for developing and enforcing AI policy.

Investing in resilience requires action and investment by a much wider set of actors than nonproliferation does. For resilience to be effective, the government needs to legislate and allocate funding, collaborate across agencies, build early warning systems, and serve as a resource hub for downstream actors and rapidly disseminate information to help them shore up their defenses. The U.S. federal government isn’t exactly well known for being competent at this set of tasks.

So it shouldn’t be a surprise that when we look at the government’s track record, policy responses for resilience have been underwhelming. In fact, even when there are areas of agreement between proponents of the normal and “abnormal” views on AI, such as requirements for transparency, auditing, and safe harbors for safety research, we are yet to see concrete federal action. (There are some efforts, like the recent letter from representatives urging the federal government to improve coordination on cyberrisks. But for now, it is just a letter with recommendations; it remains to be seen if any action will be taken based on these suggestions.)

It is in this context that extraordinary government actions, such as nonproliferation, look tempting to address AI risks. These are morally satisfying since they primarily impose burdens on the companies that create these risks. They are also tractable, since they only require unilateral action from the executive, such as invoking the Defense Production Act. The main question is whether we can achieve better outcomes through such actions, or whether we should invest in improving the “normal” process of governance.

While we understand the reasons for taking the former approach, we lean towards the latter. Getting our policy act together is hard, but important—not just for this round of AI policy and misuse risks, but for all future interventions on technological harm, and for the democratic process to work more generally.

On the other hand, if our main defense against AI risks is nonproliferation, a single technical breakthrough that makes models cheaper to train could be enough to cause instability, especially in a world where we don’t also invest in resilience. The damage will be that much greater when the dam eventually breaks.

Acknowledgments

We are grateful to Katy Glenn-Bass for feedback on a draft of the essay and Shira Minsk for editorial support. 

]]> /content/do-ai-risks-require-extraordinary-government-intervention Thu, 21 May 2026 00:00:00 -0700 <![CDATA[WhatsApp v. NSO Group]]> https://knightcolumbia.org/cases/whatsapp-v-nso-group On May 20, 2026, the Knight Institute filed an amicus brief in WhatsApp v. NSO Group, a case concerning Pegasus, a commercial spyware tool developed by NSO Group. WhatsApp argues that NSO Group violated the Computer Fraud and Abuse Act (CFAA), California’s state-law analog, and WhatsApp’s terms of service through its role in the development and deployment of Pegasus.

The district court ruled in favor of WhatsApp in late 2024. A jury awarded damages in 2025, and the district court entered a permanent injunction. NSO Group subsequently appealed the court’s rulings on liability, injunctive relief, and damages.

The Knight Institute’s amicus brief describes the threat to free expression and press freedom that results from the use of commercial spyware like Pegasus. It argues that the global proliferation of spyware is not inevitable, and that U.S. courts can protect Americans and others from the harms of spyware. As the brief explains, companies involved in developing and deploying spyware to access devices without authorization can be held liable under the CFAA and California law.

Status: Briefing ongoing.

Case information: WhatsApp LLC v. NSO Group Technologies Ltd., No. 25-7380 (9th Cir.).

]]> /cases/whatsapp-v-nso-group Thu, 21 May 2026 00:00:00 -0700 <![CDATA[Reimagining and Reconstructing U.S. Public Media]]> https://knightcolumbia.org/content/reimagining-and-reconstructing-us-public-media Modern democracies have long recognized that commercial media are incapable of providing for all of society’s informational, cultural, and educational needs. For most healthy democracies, this systemic market failure has necessitated maintaining robust public media systems. Public media can guarantee access to specific types of content and services that otherwise would remain under-produced, ranging from high-quality children’s educational programming for poor households to emergency communications during natural disasters.

The U.S. government, however, has remained a global outlier for how little it funds its public media. Even before the 2025 rescission package nullified federal support, U.S. annual expenditures were approximately $1.60 per capita—almost literally off the chart compared to most leading democracies. To even call our system “public” is a misnomer; it has long been funded primarily by private sources of capital from individuals, foundations, and corporations.

This structural contradiction—public media funded by private capital—has rendered the U.S. system politically and economically weak. Even so, public media institutions have often provided higher-quality fare compared to their commercial counterparts. This became especially notable during the Trump 2.0 era when privately-owned, commercial media have capitulated to various forms of oligarchic and authoritarian capture.

For these reasons and more, we must establish independent public media if we’re to achieve any semblance of U.S. democracy. Moreover, the current media poly-crisis offers a rare opportunity to entirely reimagine and rebuild our public media system. The following analysis begins to sketch out the structural conditions necessary for creating a new public media system anchored by what I term the “Public Media Center.” Broadly speaking, three organizing principles—de-privatization, democratization, and localization—can help guide us toward reconstructing our public media from the ground up.

De-privatization

From its earliest days, the American public media system has depended heavily on private philanthropy and, increasingly, corporate funding. Paltry government support and subsequent policy changes further incentivized public media institutions to seek out corporate sponsorships in the form of seemingly full-blown commercial ads (euphemistically referred to as “enhanced underwriting”). Such reliance on corporate money not only blurs important distinctions between commercial and public media, but it also can skew programming in anti-democratic ways. The first step toward creating a truly public media system requires sufficient, permanent, and insulated funding to support high-quality and universally accessible media. Ballpark calculations based on international standards and historical precedents put this budget at roughly 30 billion dollars per year. This money could be allocated via block grants to states and further devolved though public grant-making like those deployed by civic information consortiums aimed at supporting local journalism.

Democratization

A growing body of research demonstrates positive correlation between independent public media systems and healthy democracies. However, public media institutions themselves also should be democratized. To do so isn’t only ethically sound, but also strategic: Democratization can help ensure bipartisan trust, structural resilience, and journalistic independence. Toward this aim, a public media system shouldn’t be public in name only but actually owned and controlled by local communities. This collective ownership and governance must translate to public participation in all stages of media production and dissemination to encourage trust and community investment. In fact, public media institutions are often cross-ideological islands of trust in an otherwise dismal landscape. This trust can be further deepened through direct public ownership and participation, perhaps through community action programs, participatory budgeting, or some similar bottom-up model of governance. Rotating oversight boards could be locally elected or randomly selected to ensure public accountability.

Localization

Although locally rooted, public media outlets often amplify national instead of community programming. By becoming more localized in their coverage, public media outlets would realign their programming with the types of news, cultural fare, and information currently being under-provided in many communities. This refocusing also would return public media institutions to their historical roots. Prior to the Public Broadcasting Act of 1967, educational broadcasters were typically situated in community-facing stations based at public universities. But once the public broadcasting network became consolidated and centralized, it shifted toward national programs instead of showcasing local culture and public affairs—partly because producing local media is costlier than syndicating national content. While some recent initiatives focus more on providing the local journalism that the contracting newspaper industry no longer produces, public media outlets have long remained an under-utilized infrastructure in combating the ever worsening news deserts problem. To prevent undue federal control over the allocation process, public media funding could be devolved to the state and county levels—even municipalized—to better respond to community information and communication needs.

Imagining the Public Media Center

Supporting strong public media at the center of our broader information ecosystem can help guarantee a baseline level of reliable news and communication for all members of society—a universal service mission that commercial systems rarely provide. Moreover, public media often yield spillover effects—positive externalities—that encourage better media from commercial and nonprofit sectors as well.

Yet, while salvaging existing public media institutions is important, it’s insufficient for long-term democratic health. A more ambitious project would aim to establish Public Media Centers (PMCs) in every community across the country. These multi-media hubs should be federally guaranteed but locally owned and controlled, perhaps housed in already-existing public spaces such as post offices, libraries, public access media outlets, universities, and public broadcasting stations.

A PMC model can be broken down into six discrete layers that must be democratized: the funding layer determines how this system can be financially sustained; the governance layer ensures resource allocations and other key decisions are made collectively; the ascertainment layer accesses a community’s critical information needs; the infrastructure layer focuses on the material needs (including universal broadband service) for guaranteeing reliable access to information; the technological layer privileges public media in search and news feeds; and the engagement layer empowers local communities in making their own news and telling their own stories. These layers can be seen as part of a broader “public media stack.”

A holistic critique of the problems afflicting our information and communication infrastructures—structural pathologies mostly predating the Trump administration—should inform systemic solutions. Many such problems, including media/tech oligarchy, exclusion from high-quality news and information, and the local journalism crisis all stem directly from or are exacerbated by market failures and run-amok capitalist logics. Only a public media system, if properly designed, can avoid such predictable hazards.

Today, with the ongoing collapse of local journalism and the abject failures of commercial media, the need for a public system is glaringly acute. Any plan for revitalizing American democracy requires an information ecosystem with a fully funded and independent public media system at its core. Reconstructing this system is not a silver bullet for all that ails American society, and other structural reforms remain vitally important. But supporting such essential infrastructure is non-negotiable for any democracy worthy of the name.

]]> /content/reimagining-and-reconstructing-us-public-media Tue, 19 May 2026 00:00:00 -0700 <![CDATA[Is Individualism the Problem? Toward a System of Free Expression that Challenges the Media Individualism Complex]]> https://knightcolumbia.org/content/is-individualism-the-problem-toward-a-system-of-free-expression-that-challenges-the-media-individualism-complex Any attempt to reconstruct a system of free expression in today’s information system would be smart to address one of its core frictions: though “the media” is ostensibly charged with developing and caring for shared interests, it is persistently dominated by powerful individuals—a system of individualism—who prevent it from being a force for collective meaning-making and democratic self-governance. The personalities driving the current U.S. federal government and its media allies are obvious and egregious examples of embodied, personalized power. But they are not unique in kind, just particularly extreme elements of an entrenched system of celebrity power that makes free expression in public interests virtually impossible.

Today’s “Media Individualism Complex” has five powerful dimensions that feed each other: (1) celebrity influencers with personal brands and loyal audiences who use their embodiment to command attention; (2) billionaires owners and celebrity CEOs using media companies for economic gain, personal advancement, and political positioning; (3) critics, intellectuals, and branded academics invested in styles of commentary and critique that need and feed individual reputations; (4) media technologies like personalized platforms and chatbots that watch, aggregate, model, and feed individual actions; and (5) news coverage that purposefully blends media figures’ work and personae.

Distinct from media systems driven by a concern for public goods, collective action, and procedural accountability, the Media Individualism Complex has its own logics. It is shaped by embodied, personal interests and private wealth, and also thrives on and strategically invokes notions of benevolence, fame, shame, charisma, reputation, celebrity, propriety, exclusivity, courage, genius, and other individually possessed and performed forms of power. The Media Individualism Complex may periodically intersect with and even support public interest media (celebrities supporting causes, philanthropists endowing a newsroom, patrons funding a documentary, star academics advocating for social justice), but the complex is fundamentally at odds with public interests because its people, signals, norms, and ideals systematically and structurally traffic in individualism.

To be sure, this complex is not new; individuality and personality have always been at the heart of media systems, especially in the United States. The country’s media has long been dominated by celebrity influencers (Charles Coughlin, Walter Cronkite), owner-patrons (William Randolph Hearst, Walter Annenberg), branded critics (Walter Lippmann, Gore Vidal), individualism publications (People Magazine, TV Guide), and coverage that mixes biography, personae, and public interests (Woodward and Bernstein portrayals in “All the President’s Men,” and the embodied performative interview styles of brands like Barbara Walters, Kara Swisher, and Ezra Klein). Such individualism is not to be dismissed or derided. It has sometimes made laudable and powerful interventions into media systems—e.g., when Newton Minow delivered his “vast wasteland” speech, when Jon Stewart accused Tucker Carlson of “hurting America,” and when James Baldwin mixed memoir and critique to denounce Hollywood racism.

Today, this Media Individualism Complex plays out amongst:

  • Celebrity Influencers. Media figures like Charlie Kirk, Joe Rogan, Hasan Piker, Stephen Colbert, Jimmy Kimmel, and more regularly mix celebrity, personal politics, humor, and populism in ways that shape the Media Individualism Complex messages and styles. Sometimes canceled and even killed for such individualism, they show the power and precarity of starring in a system that prizes embodied, solipsistic analyses. And the rapid rise of hybrid influencer-journalist cultures means that social media stars with personal brands and followings increasingly drive news coverage. Much rides on what these individuals say, the risks they take, and how well they leverage funders, broadcasters, politicians, audiences, platforms, and attention economies.
  • Billionaires & Funders. Wealth and power has also rapidly concentrated in a relatively small set of individuals who have become key actors in creating, funding, and running the Media Individualism Complex. Billionaires like Jeff Bezos, Mark Zuckerberg, Elon Musk, and Patrick Soon-Shiong own and shape media and technology companies according to their personal values. CEOs like Disney’s Bob Iger (Disney owns ABC News) and Paramount’s David Ellison (Paramount owns CBS News) have been at the center of politically charged questions about how their media companies will reward, censor, or allow speech, and how such decisions weigh on their personal legacies and political influence. And wealthy and famous individuals like Dave Chappelle, Joan Kroc, Connie Ballmer, Eric Schmidt, Pierre Omidyar, and Craig Newmark all choose which parts of the media system to endow. And entire literary traditions focus on how media systems make and sustain such personalities.
  • Critics & Intellectuals. Many critics have built careers on critiquing concentrations of power in ways that both need and feed the Media Individualism Complex. Celebrity intellectuals with publicists, agents, assistants, stylists, and named chairs maintain powerful personae through a system of columns, podcasts, TED talks, exhibitions, social media, magazine profiles, “genius” prizes, fellowships, lists curated by Forbes, Time Magazine, MIT Tech Review, and Business Insider, and with personal access to elite gatherings like Dialog, Bilderberg, and the World Economic Forum. While such individuals may use their celebrity to challenge media power in ways that strategically align with or are benevolent to public interests, their ability to do so requires a system that values and trades on individualism.
  • Platforms & Designs. As much scholarship has documented, the algorithmic logics of social media platforms are often driven by analyses of how well content engages people as individuals—whether they are entertained or outraged, whether they scroll past or repeatedly view, whether they comment or share, whether they become habitual users. Platforms sense personal reactions, prompt individuals to act, and try to elicit embodied emotions that people are encouraged to represent and share with others. A dogged focus on individual engagement is crucial to ensuring that people repeatedly return to the Media Individualism Complex and pay attention to its speakers, funders, critics, and coverage. This automated individualism is especially pronounced in contemporary AI bots designed to be agreeable, confirm individuals’ impressions, and foster a kind of sycophantic intimacy.
  • Persona Coverage. Even coverage by media organizations reinforces the power of media individualism, with publications regularly producing lifestyle profiles of celebrities, influencers, billionaires, and critics. The Guardian ponders the significance of a Mark Zuckerberg AI avatar, and the New York Times asks if Tim Cook was a stylish CEO, speculates on the influence a “MAGA Girlfriend” has on Google co-founder Sergey Brin, analyzes the Sam Altman-Elon Musk feud, and publishes a profile of CEOs asking whether CEOs should be profiled. The Wall Street Journal writes more than 800 words on how a sweater emblazoned with a CEO likeness shows how “leaders at companies from Nvidia to Palantir are now driving fashion, signaling a new era of the cult of the founder.” Vogue magazine devotes almost an entire issue to Jeff Bezos’s wedding. The Media Individualism Complex needs such figures to be personalities worthy of coverage, recursively reinforcing its own power and the power of those they cover by making audiences see celebrity as unquestionably, naturally newsworthy.

Though charm, charisma, and celebrity can be leveraged for ill effects, individuals can also harness them for good. They can use their individuality to call for changes that they think will make the media systems better serve public interests. To be clear, I do not decry all forms of media individualism but it is incredibly dangerous for media systems to not ask why certain individuals are so powerful, how individualism has become such a powerful media ideology, and what happens to media systems when reformers must repeatedly fit public interests into individualized, private interests, benevolences, and largess of those who populate, make, fund, and police the Media Individualism Complex.

What might be done? There are a few ways forward.

First, individuals may retain their personal power, but use it to work against the very forces that gave it to them, the forces that sustain the Media Individualism Complex. They could see themselves as embodiments of failed policies and systems and work to make themselves the last exemplars of such failure. Second, individuals could ‘quit’ their positions as powerful media individuals and find ways to ‘donate’ their personal power to collective causes, divesting from positions of individual privilege in ways that reassign individualized power to publics. Third, individuals might organize collectives that pool their personal power into collective instruments of influence that they direct through shared governance and collective action. They would create new forms of power that were fundamentally anti-individual. Fourth, individuals may simply become more honest and transparent about having and using private power, neither giving it up nor reassigning such embodied privilege, but being explicit about why they think they should have and use it.

Fifth, powerful individuals may better articulate how their personal power rests upon people or forces that are largely invisible but that are nonetheless essential to creating and sustaining their seemingly independent power. They might call attention to—and make themselves responsible to—the apparatuses and infrastructures that make them seem special and singular. Sixth, though it seems to me like an ethical race-to-the-bottom, some people may adopt a “ridicule as praxis” approach that personally shames, demeans, or otherwise demotes powerful media individuals, centering and calling attention to their personal absurdities. Seventh, media organizations could use their coverage to critique the fundamentally unacceptable idea that some individuals should have more or less media power, highlighting individualism as dangerous and antithetical to public interests, not an idiosyncratic or quirky curiosity designed to entertain. Finally, academics could follow in the footsteps of scholars who have studied charm, charisma, celebrity, and mogul power to develop precise and critical accounts of how media individualism works and shapes media power, and how billionaire media figures might be countered.

If media systems are to ensure free expression they should challenge increasingly personalized concentrations of wealth, status, and technological control. Concentrated power needs people to think that media systems dominated by individuals are inevitable. They are not; things could be otherwise. At best, powerful people are benevolent individuals who can be convinced to invest their private power in public interests; at worst, these are self-interested personalities who see their power as a natural, meritocratic reward that entitles them to impose their own ideas of media on those who struggle to tell and listen to stories without simply being clients of the interests of wealthy and powerful individuals.

Finally, holding a mirror to ourselves and those close to us, we should also see how critics, reformers, and those who have suffered the ills of a broken media system often take up individualism as a tool of progress. They understandably think that their own benevolent applications of individualism—serving personal theories of structural change and social justice—are ways out of the brokenness. They see their ‘correct’ application of individualism as a form of resistance. They know how precarious their individual power is, and they know the private compromises that they have had to make to retain it. They may choose to invest in and celebrate the very forces of individualism that they know work against the long term, collective, public projects that they know emerge from and sustain a robust media system. Such compromises are understandable but dangerous because they ultimately sustain the Media Individualism Complex. It is paradoxical, but the most courageous thing that a powerful member of the Media Individualism Complex might do is actively work against the forces that sustain their power, and that make their courage relatively safe and easy.

]]> /content/is-individualism-the-problem-toward-a-system-of-free-expression-that-challenges-the-media-individualism-complex Tue, 19 May 2026 00:00:00 -0700 <![CDATA["Lawyering Without Law" Transcript: Ep. 2]]> https://knightcolumbia.org/content/lawyering-without-law-transcript-ep-2 Lawrence Lessig:

I feel that we need a kind of Churchillian response here. We will fight them on the beaches. We will never surrender, and we don’t have institutions right now where we have leaders who are going to say, “Hell no, we are never going to surrender. I don’t care what it costs.” And I feel like we have so few inside of our powerful institutions right now who are not willing to draw that line.

Katy Glenn Bass:

Welcome to Lawyering Without Law, a new podcast by the Knight First Amendment Institute where we explore the unique, and important role that lawyers, and the legal profession play in defending democracy, or facilitating a country’s slide into authoritarianism. I’m Katy Glenn Bass, the research director at the Night First Amendment Institute, and you just heard a clip of a conversation with our second guest, Lawrence Lessig, who we’ll introduce in just a minute. Joining me, and co-hosting this podcast is Professor Madhav Khosla the BR Ambedka Professor of Indian Constitutional Law, and Professor of Political Science at Columbia University. He is also the Knight Institute senior visiting research scholar. Hi, Madhav.

Madhav Khosla:

Hi, Katy. Great to be here.

Katy Glenn Bass:

And with us today, we are very lucky to have Lawrence Lessig, the Roy L. Furman professor of law, and leadership at Harvard Law School to talk about the role of the legal profession in a democratic society. Professor Lessig’s long, and varied career has included work on constitutional law, the internet, and intellectual property, and institutional corruption. He’s published over a dozen books, and for nearly two decades, he has been a leading voice in movements to reform democratic systems, and strengthen institutional accountability. Larry, welcome to Lawyering Without Law. Thank you so much for joining us.

Lawrence Lessig:

Thank you for having me.

Katy Glenn Bass:

It’s a real pleasure. So, I’m going to start us off. You have written extensively about institutional corruption, including in your book, America Compromise, which was published in 2018. So, can you tell us what you mean by institutional corruption, and why it’s such a problem today?

Lawrence Lessig:

Well, I think we have a default understanding of corruption, which is basically illegal corruption, the kind of corruption of taking a bribe, or buying off some government official. And I think that too often we think that that’s the only relevant kind of corruption. And my view is that’s actually the least significant kind of corruption. A much more significant kind of corruption is when we have influences, and in my view, it’s primarily economic influences that guide an institution away from what its underlying purpose is to be. And I think the one we all see is Congress. If you have a Congress filled with people who have spent 30 to 70% of their time raising money so that they can become members of Congress, they’re obviously not raising money from the average American. They’re raising money from the tiniest fraction of the 1%. And so they become extremely sensitive, and responsive to that tiny fraction of the 1%.

Now, our democracy, or our republic was meant to be a representative democracy where members of Congress were to be quote “dependent on the people alone,” as Madison put it. And by the people Madison said in Federalist 57, he meant quote, “not the rich, or than the poor.” But what we’ve allowed to emerge is a dependence on the rich more than the poor because you don’t get to Congress unless you first please the rich. So, in that sense, it’s a institutional corruption. Even if no member of Congress took bribes, still you should say that the institution is corrupt because the dependencies that have developed inside that institution are deeply corrupting from the representative ideals of Congress.

Madhav Khosla:

Professor Lessig, one of the interesting things about the professions is that they each have their sort of internal normativity, and their internal purpose. And so what it means to be a good lawyer is different from what it means to be a good teacher, and a good doctor. And given your focus on institutional corruption as something better understood as structural misalignment, let’s say, rather than illegality, do you think the legal profession meets that definition, or comes close to it at least given how concentrated access to good lawyering actually is?

Lawrence Lessig:

Yeah, that’s a great point. I mean, I do think that it’s first important on the good side to recognize that the legal profession has been pretty aggressive in disciplining its members across its history when they violate some pretty fundamental norms. So, for example, you’ll see all the time that President Trump will say things that his lawyers will not say in court because his lawyers are constrained, they could lose their license in a way that obviously Donald Trump has no license to lose. But I do think that increasingly we’re seeing in the context of especially commercial practice in America, this misalignment. I actually had a personal experience with this when I just came to Stanford, I was asked by a friend to become of counsel to a very prominent law firm. I said, “Your clients all hate me.” And he said, “It doesn’t matter. We’ll take care of that. Don’t worry.” So, I went to work for them, and the very first week one of the biggest clients said, “It’s either Lessig, or us, you need to decide.”

And so they brought me in, and I said, “I told you your clients hate me. This was the point of why I didn’t think this would work.” And they said, “Well, the client is okay if you publish your articles in the Stanford Law Review, or in the University of Chicago law. They just don’t want you to publish in Time Magazine, or Newsweek", back in the day before there was any real internet stuff. And I said, “I can’t make that promise to you. I’m going to publish wherever I’m going to publish.” And then he said, and this is the chilling part, he said, “Well, you’re violating your ethical obligation.” And I said, “What do you mean?” And he said, “Well, you have an ethical obligation to advance the business interests of our clients.” And I said, “No, actually my ethical obligation is to me believing I’m saying the truth, and I have no ethical obligation to your business interest. And so I don’t think I can work here anymore.”

And I left. But the point is, I’m sure there are many who believe that in fact they have an ethical obligation to the business interest of the clients, even if the business interest has nothing to do with the interest of the law. So, that’s a great example of this sort of structural misalignment that I think does exist in the law.

Madhav Khosla:

And it’s funny, your example recalls a conversation Katy, and I were having earlier where we spoke about how lawyers are conceived as being responsible to their clients, but they’re also thought to be officers of the court, and that element has sort of dropped out in some ways in the modern legal profession. But just on Trump’s second term, given the ways in which we find how the legal profession has responded, how have you viewed these events, and do you think that they sort of fit in actually to this broader institutional corruption thesis, and the example that you brought out, and some of the political economy story that you’ve been telling, or do they actually show perhaps some kind of fidelity to the rule of law in some deeper sense?

Lawrence Lessig:

Well, I do think that there’s a really dramatic struggle that’s going on inside of the Justice Department right now where the conception that the president, and his closest advisors have about the role of the Justice Department fundamentally conflicts from the self-conception of most traditional lawyers inside of the Justice Department. Now, the president, and his senior legal advisors are animated by a completely idiotic, historically baseless conception of the executive power of the president, the sort of so called extreme unitary executive power. And under the extreme unitary executive power, the job of everybody in the administration from cabinet officials to lawyers in the Justice Department to judges, immigration court judges, is to be advancing the policy of the president. Whereas the conception of lawyers, especially inside the Justice Department is our job is to advance the rule of law. That’s our job. We work for the Constitution.

We don’t work for the president. Now I’m quite struck by the number of people who’ve said, “Hell no.” So, we can criticize lawyers, and I criticize lawyers a lot, but if you take all these different industries like lawyers, and the media, and tech companies, and you ask in each of these industries, what’s the highest number of people who’ve said hell no? I think we’ve got a lot of lawyers who’ve said hell no. And a lot to have said, “I have a mortgage, and my kid’s going to college so I’m just going to get along, and this guy will be gone in four years. We’ll see what happens.” So, yeah, I think it’s a serious problem. And what I’m optimistic about is that I think more, and more ordinary people kind of see it as a problem.

I’ve been on this corruption gig now for 19 years, and at the very beginning it was very hard to get people animated, or even get them to recognize what the issue was. But I think today nobody can look at this system, and say that the system is immune from that corruption. And of course, the kind of corruption we se today is a million times worse. It’s like Mike in Hemingway’s Son Also Rises, how did you go bankrupt slowly at first, and then all it was, right? And that’s, I think, where we are.

Katy Glenn Bass:

I do admire all of the lawyers who have said, “Hell no.” And right at the beginning of the second term, he issues these executive orders that are targeting a number of big law firms, and a fair number of them, six, or seven, fight those orders in court so far successfully, but then a fair number of them immediately cut deals, including some who were not directly targeted but were trying to avoid being targeted by an EO. So, how do you read that through your institutional corruption lens?

Lawrence Lessig:

Yeah, I think that’s a complete betrayal, totally a complete betrayal. I think it’s because these people have begun to conceive of their job as the job of just maximizing the wealth of their firm. I’m sure you’re familiar with that story that Nick Bostrom pushes about how AI will run away, and he sort of imagines giving a super intelligent AI the job of maximizing paperclip production, and soon we have a whole universe producing paperclips. But corporations were the first paperclip maximizers, and Milton Friedman convinced corporations in the 1970s they had one job. Their job was to maximize paperclip production, maximize shareholder wealth. And that idea even at the time among corporations was deeply contested because many corporations thought, “No, no. Our job is to make sure that our community is healthy. It’s to help support growth in the area.” It’s like a lot of things we’re trying to do.

We’re not just trying to maximize wealth, but that became the kind of cool kids framing for what corporations were supposed to do, and that’s what they became exclusively focused on. And that’s what we’re seeing in corporations today. You say you’re a news organization. No, no, you’re a corporation. Your job is to maximize wealth. So, if you’ve got this tyrant who comes along, and says, “Sell your news department to me, and bend over backwards,” if that increases the shareholder value, that’s your job. You have no choice to do anything else except that. We increasingly see it in other organizations that also have kind of money at their core. So, we certainly see it in the context of these law firms who I think just thought this is simple. We can make this problem go away, and we’ll still have our bonuses at the end of the year.

I think you see that in the news organizations, you see that in many universities. The president comes in basically says, “I’m going to take your academic freedom away.” And they’re like, “Okay, but we’ll at least get the $500 million you are supposed to contractually be giving us.” So, they were willing to settle because they were just focused on the numbers, and I feel like we need a kind of Churchillian response here. We will fight them in the beaches, we will never surrender. And we don’t have institutions right now where we have leaders who are going to say, “Hell no, we are never going to surrender. I don’t care what it costs.” And I feel like we have so few inside of our powerful institutions right now who are not willing to draw that line. I think Harvard kind of tripped on it. I think that the administration was so clumsy, and the demands that they were making to Harvard that Harvard had no choice but to say, “Hell no, we’re not going to accept that.”

And then the administration said, “You caused this problem because you shouldn’t have taken that letter seriously. It wasn’t a serious letter.” And it’s like, “What are we supposed to do now?” But the point is that once they saw the whole world rallied to them, and say, “Wow, you guys are standing up to the president.” It’s like they didn’t realize how much latent energy there was out there in the public to find people who would just do the right thing for God’s sake, stop calculating, just do the right thing. And I think that’s our vulnerability as a society right now. Everybody thinks they’re supposed to do the rational thing. Well, that’s the paperclip maximizer. That’s the end of humanity. And if you don’t have people who are willing to say, “I get this is how I maximize my wealth, but this is how I am human. This is what I do to be human,” we’re lost. We need those people, and we don’t have them right now.

Katy Glenn Bass:

And thinking, going back to this, the 1970s marker that you set out for when the corporate mindset starts to shift, when do you think you see that in the legal profession?

Lawrence Lessig:

I certainly think it’s the corporatization of law firms. I think it’s when the law firms become big, and they essentially are no longer true partnerships where the partners feel this moral, and ethical obligation to each other. And you look at the kind of firms that resisted it. They’re the more traditional kinds of firms. They’re filled with people who think of themselves as warriors. They think of themselves as people standing up for rights, and good. Now, obviously they also have clients who are doing terrible stuff in the world. I’m not saying they’re pure, and then not saying they’re only doing good in the world, but that was their self-conception.

But then you have these firms that are then run by managing partners, and the managing partners are not even really lawyers anymore. They’re just kind of managers. And then managing partners answering one question, how much am I going to give my partners as bonuses at the end of the year, and this strategy’s going to cut that by 20%? I can’t do that. It’s against my job. Well, once that’s what managing partners think, that’s what the law firms think that’s all over for the law firms.

Madhav Khosla:

I guess some of that is the corporatization, and that political economy. Some of it is also actually the spread of law in some sense as law is now trying to serve so many more functions. And so is there some potential story of the idea that lawyers are now existent in this orbit? And that political economy, you mentioned universities, and I was just thinking how it interacts with another profession, universities, and law schools where if you look how much do kids pay to go to Harvard Law School, or to Columbia Law School is a huge amount of money. But I think the answer is because the customer is not the student, it’s the law firm.

And so everybody’s actually locked into that cycle. And the thing that it makes me wonder is that we teach professional responsibility doctrine entirely as being about the individual, but we actually don’t think at all, or teach in any way how to think about this sort of structure. And is it an opportunity to actually redesign how we think maybe about legal ethics, or about just in fact what the profession is as a structural idea rather than just what you need to do [inaudible 00:15:11] in a particular case?

Lawrence Lessig:

Well, I think that’s a great point, and I hadn’t thought about it before, but it connects to the way I would think about Congress as an institution. So, the focus on corruption in Congress was always a focus on whether you had corrupt members of Congress, which of course is an interesting question, but it’s not the most important question. It’s whether the institution itself is capable of acting because of the influences on the institution. And I think that’s a great way to think about the problem of the law as well. Now one big difference though is I’m actually pretty sure that within the next 20 years, we’re going to see a radical change in the institutional structure of law, and for the good. I mean, I’m a believer that as much as I’m terrified about our inability to manage AI risk, and I think AI presents enormous risk.

I mean, I’m not quite a P-doomer of one, but I do think there’s a real P-doom here to worry about. I’m completely acknowledging there’s a totally huge downside. Let’s recognize some of the upside. And one of the most important upsides could be to radically lower the cost of law. If we could spread AI inside of the law, and inside of the administration of justice, and inside of the administration of government, we could just make all of those systems work much better. And what working much better will be is that the rent seeking of these big firms will get blown up, and we’ll see a radical reorganization of what law firms look like. Now, I think there’ll always be lawyers. I’m pretty confident there’ll be many fewer lawyers as the capacity of each particular lawyer goes up because of this technology. So, I’m sure that we’re going to see a radical restructuring of law before we see a radical restructuring of Congress, or maybe not. Maybe Congress is going to blow up next year because obviously there’s zero support for the institution right now.

Katy Glenn Bass:

I’m going to shift gears a little bit here to talk about self-regulation, which you actually spoke about earlier in terms of the ways it is functioning as a real check on lawyers, and their ability to carry out what the Trump administration wants. So, of course, one of the defining characteristics of the professions is that they are largely self-regulating as is the bar, which sets its own ethics rules, and disciplines its members. But you have argued that institutions rarely reform dependencies that they’ve normalized. So, do you see bar self-regulation as something that is structurally capable of functioning as a real check in some of these cases?

Lawrence Lessig:

I don’t think we can speak in general about that, but I’m happy to concede that in general, things are getting more difficult. I do think, again, on the optimistic side, I was very close to Francis Haugen, representing Francis Hagen when she came out as the Facebook whistleblower. And so I spent a lot of time reading the Facebook files. And one of the most striking things to me about reading the files was Facebook’s filled with a lot of super talented, good, sold engineers, and an engineering is a profession. And so here are these good, sold engineers who are going to Mark Zuckerberg, and saying to Zuckerberg, “Look, this technology is killing young girls. We need to do something about this technology", or “This technology is creating extremism, and we could tweak it here, and do this there to make it so that it didn’t do those things.” And Zuckerberg’s singular question, I mean, he was the first paperclip maximizer is “What does it do to engagement?”

And if it reduced engagement, then they weren’t allowed to adopt the reforms. And if it increased engagement, or kept it at the same, they were allowed to adopt the reforms. And so when you think about those engineers, they were not constrained by their profession because their profession doesn’t have any normative constraints on them. You can say you’re supposed to be acting in a certain way, but there’s not an institution that takes away your engineering license, right? There’s nothing there to police them like that. And so I had many conversations with engineers who are kind of desiring to create the equivalent of like the ABA for engineers, and set a bunch of ethical codes for engineers so that engineers are able to point to the sign that used to be on Google’s law, which is do no evil. We’re not allowed to be an engineer, and do harm like this.

And that would be an enormous advance. I spent many years thinking about the way architecture, or code is law. Well, if that’s true, the engineers ought to have the same kind of professional constraints on them that lawyers have on them to think not just about what their client wants, but what they understand the values of engineering to be. So, I think that that’s an optimistic way to think about how that profession could be regulated. But I think in the American context now that dominance of these big firms is distorting the capacity of this normative rule to have a effective constraint on how lawyers in general are going to function, and I’m not sure what’s going to change that in the short term.

Madhav Khosla:

Larry, on your big picture point, and zooming out maybe from this example, just on the relationship between lawyers, and democracy, let’s say. One of the things that I’ve often thought about with your work on Congress is that you correctly focus on the number of people in Congress who spend a huge number of their time raising money. The other interesting thing about Congress is that lawyers make up a disproportionate share of it. And I was wondering whether, given that a lot of your work is on how the normativity, and the logic, and the principles of one domain sort of seep into another, do you think legal training from adversarial thinking, formal compliance, client loyalty makes lawyer legislators actually perhaps worse at recognizing the kind of corruption you described? Because lawyers also assimilate quite well into new structures, or path. There’s this fabulous line in Tocqueville’s Democracy in America that in a society where lawyers don’t get assimilated into structures of power, they will be active agents of revolution.

Lawrence Lessig:

Yeah. I first of all think that we have wildly too many lawyers in government. I also think that one thing we know about intelligence is that the smarter you are, the more you can convince yourself of whatever you want to convince yourself of. When they do studies of climate deniers, they don’t find that it’s uneducated people are the strongest climate deniers. It’s actually the educated people who are the strongest because they’re very good at rationalizing to any conclusion. And so lawyers are kind of trained at that game of rationalization. And so yes, if you have a lot of people whose profession is to practice this kind of rationalization, then you’re going to have that distortion. I mean, this is one particular, I think, corruption of American legal practice relative, for example, British legal practice. One great thing about the British system is that the advocates, the advocates who show up in court will argue on both sides of criminal practice.

They will be prosecutor one day, and defense the other day. And I think that discipline helps them understand the contours of a really just system. Whereas in the American system, you go down one path, you can never cross over. You do criminal defense work, you’re never going to be a prosecutor. You’re a prosecutor, you’ll never be touched by anybody in the criminal defense industry. So, that’s a really bad thing, kind of amplifies this bias. But absolutely. I mean, if you change the way you fund elections, which I think is ultimately what we have to have, you could increase radically the number of women, and the number of middle class, and diversity economically of people inside of Congress, because right now the natural successful person running for Congress is a white male lawyer that’s the perfect person to run for Congress. Why? Because they have what we used to call Rolodexes.

The biggest Rolodex is they have all of these clients who are going to obviously be interested in them being in Congress, and they can call all of them, and they can get all the money they need to be able to run for Congress. But if you’re like a working mother, or if you’re somebody who’s been working in a steel mill to the extent there are steel mills anymore in America, you can’t compete with that. You have no opportunity to compete with that. But where we’ve seen the system move to public funding systems, my favorite example is Seattle, which has vouchers. Basically all voters get vouchers, and they give the vouchers to candidates, and candidates fund their campaigns based on the vouchers they get from voters.

We see a significant increase in women, and extreme increase in the economic diversity of candidates, and extreme increase in the cultural diversity of these candidates. So, you begin to have candidates who reflect the society as a whole, and I think that’s the critical thing that we have to do. And if we did that, there would be fewer lawyers, and that would be, I think, a good thing.

Madhav Khosla:

Larry, one of the things about you is that you inhabit, in some sense, two professional lives, right? You’re a lawyer, and you’re a teacher, and you are part of a group of colleagues who co-wrote a letter in March of 2025 about the role of legal education, and lawyers with respect to democracy, and the rule of law. And can you just tell us just a little bit about that, and the way your students felt about it?

Lawrence Lessig:

Yeah. I mean, I think we can’t minimize the extent to which this administration is abnormal. And I think the question that many of us felt is, do we remark its abnormality as a way to signal that this is just not the way law is supposed to function? And I think none of us, even in March of 2025, had any clue about just how extreme, and abnormal it would become. And so I think we tried to articulate not an anti-Trump letter, but a letter that was emphasizing basic commitments to principles of rule of law that the administration was deviating from. It was a difficult experience with many of the students. I mean, I wouldn’t say a majority, it’s the Harvard Law School, but there were a significant number of conservative law students who were angry about that. And my colleague, Adrian Vermeule, in his Twitter face at least, was quite angry that the faculty had signed that letter.

But I pushed back both on Adrian, and also on some of the students, and I said, “Just tell me exactly how our conception of the rule of law is wrong. What have we said that’s just not true?” Because if you’re saying we shouldn’t say it because it’s against the existing administration, I just don’t buy that. And so when you think that Joe Biden was slapped on by the Supreme Court under the Major Questions Doctrine because his policies deviated from the traditional position that the law had taken, and then you compare that to this administration, and what the court has done in this administration, it’s night, and day, and people say the best parallel for Donald Trump is Franklin Roosevelt. And I think that’s true from the perspective of how significantly has he changed the law. But what’s different about it is that Franklin Roosevelt had Congress behind him, and then he had a midterm election where he overwhelmingly swept the country, and he had an even greater support after that.

And so there he had the people behind him as well. Here, we don’t have any laws of Congress at the core of the fights that are going on in the Supreme Court, and we certainly, assuming we have an election, not going to have a midterm election that rallies behind Donald Trump. So, he has grabbed more power than any president in the history of the nation, even if he might have not have as much additional power as Franklin Roosevelt, but Franklin Roosevelt didn’t just grab it, he earned it, and he did it along with the Congress, which is not happening now. And that’s why I think it’s the job of the court to be willing to lose in the face of the president. Those of us who study this look back to the court in 1935, it struck down critical laws that FDR had gotten past.

And most of the time people look at that, and they say those old conservative justices, they were just like imposing their own views. But I think what they did was really important, and very valuable because what they did was draw a line in the sand, and say to the public, “You tell us which side you’re on because we’re telling you what we think our tradition means, and whether we’re right, or not, what this president is doing is inconsistent with the tradition.” And that triggered a debate in the public, and that debate in the public was democratically edifying. Right now we’ve got the court basically ducking, and weaving wherever they can to avoid any real conflict, and we don’t yet have them sort of triggering a public reaction that says, are we with Trump in his new conception of us authoritarian presidency, or are we going to stand for what America has traditionally been? And so I think there’s a lot of confusion that’s left because of that lack of clarity, which I think we are all suffering for.

Katy Glenn Bass:

And still thinking about sort of shaping young lawyers, and their conceptions of themselves as lawyers in relationship to the rule of law, and to upholding democratic values. So, to what extent do you think legal education is currently doing a good job of this? To what extent can legal education even accomplish this goal? Is there a way to reshape legal education that might improve the way lawyers emerge, and their understanding of their role in upholding a Democratic system along with their clients’ needs?

Lawrence Lessig:

Yeah. So, I feel like I’m probably the least informed person to answer that question. I can tell you what happens in my class, and you’re not going to be surprised that I think what happens in my class is good because I feel like in my class, what I try to do is to get people to reflect all the time on the commitment to a principle over the expediency of the moment, and that decision that they need to make. And that’s as much about their own personal choices. So, like when I counsel law students, I will tell them the really important thing you need to do is to make sure you’re never spending more than 60% of your salary. Why? Because you always want the freedom to choose to do something differently. And if you spend 90% of your salary, you’re locked in, you can’t change.

You’ve got like a mortgage, you’ve got kids in school, and that the firm does something you don’t like, you’re stuck, but you need to maintain that freedom because you’ve always got to be making the decision. Am I doing what I believe in? Am I doing what I can have confidence is right? And so it’d be great to talk to law students who’ve gone through it, and see how often do they feel like they’re being called on to make that judgment, and to decide on which side of that division they’re going to stand. Now, the other great advantage I have is I teach first years, and first years are the most idealistic. These are people that are going to change the world by doing right, and like arguing for what’s right. And so I just love the opportunity to teach people with those ideals, because it’s easy to just push a button with them, and get them to reflect, and to see this is why I came.

This is why I wanted to be a lawyer. I wanted advance causes that I think are valuable, but I’m sure that by the time they graduate, the system has worn that out of many of them, and they’ve accepted that they’re going to go work for a law firm, and they’re not going to be doing the kind of practice that necessarily advances their conception of justice. And the truth is between those two extremes, but I would love to understand how our students experience this more.

Madhav Khosla:

As we move towards closing this, and circling back a little bit, one of the things that you said that was very powerful that’s been playing at the back of my mind is the capacity for self-rationalization, and how it’s not fortuitous that lawyers would be so good at it. Citizens United has been so central to your work because it’s both exemplified, and made worse a problem that you have had your finger on for years. If you think about something like that, and you think about it as a dramatic political crisis, it’s also true that it was built by lawyers. It was decided by a court of lawyers justified through a First Amendment framework that lawyers developed. If we think about this, there is this one moment where let’s just say the corruption of the legal profession exists because of a certain political economy, that law firms have become basically corporations.

And so the fidelity is not actually to something law related, but the fidelity is just to maximizing profit. But there’s another where it may not actually even be necessarily maximization of wealth, or the corporate mindset in that way, but actually just instrumentalism, or careerism, or just the idea that actually the only thing that matters is clients, and winning, which is a somewhat distinct kind of problem to just money. And it seems very pervasive because part of what is interesting throughout in the professions is that professions are almost definitionally non-instrumental. There’s something about what it means to be a good doctor, which can’t be captured not only by money, but not by anything instrumental in some sense.

Lawrence Lessig:

Yeah, I think that’s a good point. I think that it’s important to recognize the way lawyers can be exploited by interests that are trying to advance their own interests, not for principled reasons, but just to advance their interest. I often think about Robert Borick who began much of his work was around constitutional theory, but he became really famous for his crazy views on antitrust. When he wrote his first piece on antitrust, it was so crazy that nobody at the Yale Law School took it seriously. It was completely removed from reality. But Borick was just sort of spewing out ideas, constitutional ideas, antitrust. He was just an academic. And all of a sudden a certain set of them became really valuable to economic actors, and they got amplified. And when they got amplified, they became quite significant in the world. I also think that’s kind of true in the money, and politics area.

There are people who absolutely for good faith reasons are advancing a very extremist view about the libertarian conception of campaigned finance, where you’re not allowed to have any regulations at all. That produced Citizens United. But from my perspective, the real frustration about Citizens United is the extremely bad lawyering that has allowed people to believe that Citizens United created Super PACS because Citizens United did not create Super PACS. Super PACS were created by a lower federal court decision, Speech Now versus FEC, three months after Citizens United. And that decision is based on a very basic obvious, once you see it, logical mistake. But once Speech Now made that decision, three other circuit courts followed it within a couple years, and so it became settled law. Now we’re in the middle of a fight about this right now. We’re in the First Circuit. We got an initiative passed in Maine by 75% of the vote banning Super PACS in the First Circuit.

We’re going to have an argument as soon as it gets scheduled about whether that position is actually mandated by the Constitution. The Boston Globe just had an editorial yesterday where they said the court’s got to take this up right away because it’s really critical, and they’ve identified the mistake, and there’s a chance the Supreme Court will do the right thing. And in the Supreme Court, I feel like we will be giving the Supreme Court a gift because we will be saying to the Supreme Court, “You don’t have to reverse Citizens United. We’re not asking you to reverse Citizens United. We’re asking you to apply the reasoning of Citizens United to a set of facts that you’ve never considered because you didn’t review that decision to give us Super PACS.”

And I think the Supreme Court’s going to be able to write an opinion that says, “Hey, Bernie Sanders, you’re wrong. Citizens United is perfectly fine. We totally endorse Citizens United,” but there’s no reason why Citizens United means that you have the right to contribute unlimited amounts of money. And so Super PACS can be limited even if the expenditures cannot be limited. And that will be a huge victory, and it will also be a huge embarrassment to the legal profession because we’ve lived with this deeply corrupting system of Super PAC spending for the last 16 years. And there’s no reason that we should have taken... It’s going to take at least 18 years to get to the place where the Supreme Court fixes it. And the idea that we’ve lived for 18 years with what is in essence a logical, simple, obvious mistake is an embarrassment. A legal system that kind of makes that kind of mistake is not a system you should be proud of.

But I think that I’m pretty confident we’re going to get this corrected, and when that happens, we’ll have a reason to celebrate the balance that can come. But I think that the reason we’ve not seen that is that all the money in the world is on the side of the libertarian position, and it’s really been hard to stand up something in balancing that position that has a fighting chance of prevailing.

Katy Glenn Bass:

Okay, that’s fascinating. What is the name of this case so that we can start tracking it?

Lawrence Lessig:

So, the case is DTA Dinnertable Action versus Schneider, who’s the head of the ethics commission in Maine. And we recruited Neil Katial to be our lawyer. So, Neil, I’ve known forever since he was a student, and I was trying to get him, and he was avoiding my calls, and finally I got him on the phone, and he said, “Lessig, look, I don’t take loser cases. It’s a total loser. You’re never going to win this case. I’m not going to waste my time on it.” I said, Neil, just have lunch with me, just one lunch. And so he took me to the worst restaurant in Washington, and we’re having lunch. And midway through the lunch, he said, “Oh, my God, you’re right. You’re right. I can win this case. I can totally win this case.” And so I think that when Neil, the tariff slayer gets up there, and tries to slay Super PACs, we’re just going to call him the slayer. He’s like the tariff slayer, the super PAC slayer. He’s just the most impressive lawyer to persuade conservatives to do the right thing that we have. And I think he’s going to prevail.

Katy Glenn Bass:

That’s really exciting. It’s like we have a legal cliffhanger to end this episode on. So, we will pay attention to that. So, you’re awaiting scheduling in the first circuit for this case.

Lawrence Lessig:

That’s right.

Katy Glenn Bass:

Okay. We will keep up with it. Larry, this has been really great, and really thought-provoking. Thank you for taking the time to come on the podcast, and sharing your views, and your long years of scholarship, and insight with us.

Lawrence Lessig:

Thank you for having me.

Madhav Khosla:

It’s been a privilege, Larry, really. Thanks so much for being on this.

Lawrence Lessig:

Thank you, Madhav.

Katy Glenn Bass:

Lawyering Without Law is a production of the Night First Amendment Institute at Columbia University, and is hosted by Madhav Khosla, and me, Katy Glenn Bass. This episode was produced, and engineered by Dustin Foote, fact checking by Connor Menzies, and Sophia Rojas. Candace White is our executive producer. Our music comes from Invato Elements. The art for our show was designed by Jay Volmar. Thanks to Lawrence Lessig who joined us for this episode. Lawyering Without Law is available on Apple, Spotify, and wherever you listen to podcasts. Please subscribe, share, and leave a review. We’d love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org. That’s Knight with a K, and follow us on social media. We’ll see you next time for a conversation on the shifting identity of the legal profession with Professor Deborah Pearlstein of Princeton University. Bye for now.

 

]]> /content/lawyering-without-law-transcript-ep-2 Fri, 15 May 2026 00:00:00 -0700 <![CDATA[Support Local Journalism, Expand the Definition of Fraud, and Guard Against Boomerang Effects]]> https://knightcolumbia.org/content/support-local-journalism-expand-the-definition-of-fraud-and-guard-against-boomerang-effects Two broad categories of problems plague the information ecosystem of the United States: (1) long-term problems occasioned by technological changes over the last three decades; and (2) what one can only hope will prove to be short-term problems occasioned by the ascension to power of an authoritarian presidential administration that does not value freedom of speech. In this essay, I suggest that some efforts to address the first sort of issue risk exacerbating those in the latter category. I nonetheless propose two interventions that might be worth the risk.

1. The Business Model Problem

A healthy information ecosystem requires actors who investigate and report on the activities of government officials and others—in a word, journalists. Beginning with the launch of Craigslist in 1995 and accelerating with the rise of advertising on Google and social media platforms, classified ads, which traditionally accounted for thirty percent of the revenue for local newspapers, dried up. Subscriptions also declined, as erstwhile readers turned to the internet for free alternative sources of (often unreliable) information. These and other factors hit local journalism the hardest, creating local “news deserts” that have been widening for two decades.

One partial response is public funding. And indeed, for a long time, that was an important piece of the puzzle, especially in rural areas, where funding from the Corporation for Public Broadcasting (CPB) accounted for a critical portion of local television and radio stations’ revenues—as high as 97 percent in one rural Alaskan community. However, Congress eliminated CPB funding in 2025, and with nothing in the till to distribute, earlier this year CPB’s board voted to dissolve itself.

If and when Congress and the administration change hands, it will be tempting to resurrect CPB or re-create something like it. I would not oppose such a move, but it carries risks. In stable constitutional democracies, publicly funded news services such as the British Broadcasting Corporation (BBC) and the Canadian Broadcasting Corporation (CBC) make a healthy contribution to public discourse, providing honest and nonpartisan news reporting. However, in the hands of an autocrat, government-funded news organizations typically serve as sources of propaganda.

Seen in this light, the elimination of CPB funding, while harmful, was not as harmful as one of the alternatives: continued funding but on condition that the recipients of government largesse toe the party line. Such moves can be and have been used even while the authoritarian regime purports to respect the independence of journalists. Examples from other countries readily come to mind, but so do domestic ones. When the Defense Department began exerting greater control over Stars and Stripes earlier this year, it claimed that the news organization would continue to “operate with editorial independence,” while it underwent a “modernization” under which it would no longer focus on “woke distractions.”

To be sure, it is probably easier for the government to exert control over a house organ like Stars and Stripes than over independent local television and radio stations, but only slightly. President Trump filed frivolous lawsuits against ABC News and CBS News but nonetheless obtained multi-million-dollar settlements because they feared that his administration would otherwise withhold regulatory approvals vital to their business. He or a similarly autocratic successor would have little difficulty finding and using leverage over much smaller news organizations.

The upshot is not necessarily that a future, less autocratic, government should refrain from funding journalism. Rather, the point is that any such efforts should be undertaken cautiously, with eyes open to the risks. Lawmakers should consider mechanisms to mitigate those risks, such as independent funding streams not subject to presidential control. Finding such mechanisms will be difficult if, as widely expected, the Supreme Court invalidates nearly all independent federal agencies in Trump v. Slaughter. Reliance on state rather than federal funding would be one possibility.

2. A New Kind of Fraud

The decline of local journalism is not the only adverse impact of the internet on our information ecosystem. It has also led to the spread of misinformation and disinformation. Any successful effort to combat that phenomenon would necessarily be multi-pronged. Here I would suggest one prong: expansion of liability for fraud.

In most U.S. jurisdictions, civil or criminal liability for fraud is established by showing a deliberately false representation that is intended to and does induce reliance by the listener, causing damage to the latter. In some statutes, there is also a requirement that the fraudster obtain money or some other thing of value from the person defrauded. Yet despite the fact that we take part in an “attention-based economy,” purveying mis- or disinformation in exchange for monetizable attention has not been regarded as a species of fraud.

A 2022 student Note proposed that the Federal Trade Commission (FTC) could regulate “fake news” as a species of fraud that falls within its existing statutory mandate. But whether spreading mis/disinformation would be regulated by the FTC, made the basis for civil liability via common law actions, or defined as criminal or tortious by a new state or federal criminal or civil statute, liability would be subject to First Amendment limits. “Simply labeling an action one for ‘fraud,’” the Supreme Court stated in a 2003 case, does not suffice to take it outside the protection of the First Amendment. That’s fair enough. However, deliberate mis/disinformation that aims at capturing the readily monetized commodity of attention bears sufficient similarity to conventional fraud as to fall outside First Amendment protection.

I do not have the space here to address any of the details that would be necessary to implement a conception of fraud capacious enough to cover mis/disinformation. For example, to hold platforms liable, some amendment to Section 230 of the Communications Decency Act might be required.

Nor can I ensure that liability for mis/disinformation would not be weaponized by the likes of Trump or his political allies, who frequently claim that truthful reportage that puts them in a negative light is “fake news.” But that risk would be worth taking if we concluded that the autocrats already have more potent tools at their disposal.

Defamation liability is arguably such a tool. For example, for FBI Director Kash Patel to prevail in his defamation lawsuit against The Atlantic, which ran a story describing him as engaged in “bouts of excessive drinking” and other irresponsible conduct, he would need to show that the reporters and/or writers for The Atlantic acted with reckless disregard for the truth. That is the high bar set by New York Times v. Sullivan, but it is still lower than the bar for fraud: intentional falsehoods. However, there are other elements to a successful defamation claim, not least that the statement at issue be damaging to the plaintiff’s reputation.

By contrast, liability for fraud for mis/disinformation about a potentially limitless number of subjects could open the door to many more claims than defamation law now permits. Accordingly, liability for mis/disinformation as a species of fraud should probably be limited to some discrete and especially dangerous subset of such mis/disinformation, such as AI-generated images, videos, and sounds passed off as real.

* * *

Vincent Blasi has argued that the First Amendment should be interpreted from a “pathological perspective”—that is, to equip it “to do maximum service in those historical periods when . . . governments are most able and most likely to stifle dissent systematically.” I agree. Legal regimes that may be sensible in placid times can prove hazardous in authoritarian periods, such as the current one. However, the pathological perspective should be supplemented by an optimistic perspective that not only guards against autocracy but also fosters conditions for a robust democracy.

]]> /content/support-local-journalism-expand-the-definition-of-fraud-and-guard-against-boomerang-effects Thu, 14 May 2026 00:00:00 -0700 <![CDATA[Knight Institute Lawyering Without Law Workshop and Essay Series to Feature Leading Scholars and Jurists]]> https://knightcolumbia.org/content/knight-institute-lawyering-without-law-workshop-and-essay-series-to-feature-leading-scholars-and-jurists On September 25-26, 2026, the Knight First Amendment Institute will host a work-in-progress workshop for a forthcoming scholarly essay series, “Lawyering Without Law: The Legal Profession in an Age of Authoritarianism.”

This workshop and essay series are part of a broader project on the legal profession and authoritarianism, organized by the Knight Institute in partnership with our Senior Fellow Madhav Khosla, the Dr. B.R. Ambedkar Professor of Indian Constitutional Law at Columbia University. This project seeks to spark public debate and generate new scholarship that will galvanize members of the legal profession in the United States and abroad to reflect on their roles in defending the rule of law and democratic values, and help them be more effective at doing so. It also includes a new biweekly podcast that interrogates the unique and important role that lawyers play in defending democracy, or in facilitating the slide into authoritarianism, co-hosted by Khosla and the Institute’s Research Director Katy Glenn Bass.

The essay series will explore, among other questions, how differing conceptions of the legal profession contribute to lawyers’ role in either resisting authoritarianism or accommodating it, how bar associations maintain—or lose—their independence in inhospitable political environments, and how democratic backsliding can occur through the working of ordinary legal rules and practices. We are excited to announce that the following scholars and jurists will participate in the September 2026 workshop, and many of them will contribute essays to the series: 

Lukman Adebisi Abdulrauf, University of Ilorin

Payam Akhavan, University of Toronto

Aslı Bâli, Yale University

John Coates, Harvard University

Scott Cummings, University of California, Los Angeles

Max du Plessis, Doughty Street Chambers, Senior Counsel, South Africa

David Dyzenhaus, University of Toronto

Vicki C. Jackson, Harvard University

Jeff King, University College London

Daniel Markovits, Yale University

Pratap Bhanu Mehta, Princeton University

Deborah Pearlstein, Princeton University

Margaret Satterthwaite, New York University

Kim Lane Scheppele, Princeton University

Michael Sfard, Michael Sfard Law Office, Tel Aviv

Kate Shaw, University of Pennsylvania

Rachel Stern, University of California, Berkeley

]]> /content/knight-institute-lawyering-without-law-workshop-and-essay-series-to-feature-leading-scholars-and-jurists Thu, 14 May 2026 00:00:00 -0700